author: PER CURIAM.

text:
    2007 ND APP 3
    Roland C. RIEMERS, Plaintiff and Appellant, v. STATE of North Dakota, Defendant and Appellee.
    No. 20070038CA.
    Court of Appeals of North Dakota.
    Aug. 15, 2007.
    Review Denied Oct. 16, 2007.

      Roland C. Riemers, Emerado, N.D., pro se.
    Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.
   PER CURIAM.

[¶ 1] Roland Riemers appealed from a summary judgment dismissing his claims against the State Child Support Enforcement Office (“State”). We conclude Riem-ers has failed to raise a genuine issue of material fact requiring a trial on any of his claims, and we affirm the summary judgment dismissing Riemers’ lawsuit.

I. Complaint Allegations

[¶ 2] Riemers sued the State, alleging numerous violations of his state and federal constitutional and legal rights. In his amended complaint, Riemers essentially raised the following four claims: (1) the State filed a false report of child support arrearages; (2) the child and spousal support laws violate both the state and federal constitutions; (3) the State imposed unlawful interest rate charges on Riemers’ past due child support; and (4) the unconstitutional child and spousal support laws “resulted at one time in [his] unconstitutional jailing.”

[¶ 3] The State filed a motion for summary judgment under N.D.R.Civ.P. 56. The district court issued an extensive opinion addressing the issues in the case and granted the State’s motion for summary judgment, dismissing all of Riemers’ claims.

II. Summary Judgment Review

[¶ 4] The Supreme Court discussed the standards for reviewing a summary judgment in Riemers v. Anderson, 2004 ND 109, ¶ 10, 680 N.W.2d 280 (quoting Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615) (citations omitted):

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.

III.Inaccurate Reports

[¶ 5] Riemers asserts the State falsely reported his child support arrearag-es and in so doing “substantially harmed Riemers’ financial and moral reputation.” Riemers seeks $500,000 in damages for the State’s defamation.

[¶ 6] Under N.D.C.C. § 14-02-03 libel “is a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person’s occupation.” Every person has the right of protection from defamation. Jose v. Norwest Bank, 1999 ND 175, ¶ 23, 599 N.W.2d 293. There is no liability, however, for defamatory statements that are privileged. Id. at ¶ 25, 599 N.W.2d 293. Under N.D.C.C. § 14-02-05(1), a privileged communication is one made “in the proper discharge of an official duty.” The privilege under this subsection is an absolute privilege for defamatory statements, even if made with malice. Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993).

[¶ 7] Riemers concedes the child support reports are privileged communications^ under N.D.C.C. § 14-02-05(1). In his appellate brief, Riemers states, “[a]s correctly noted by the Court, ‘both parties agree thap the CSEO [Child Support Enforcement Otece] had a duty to report to consumer reporting agencies, and these reports were privileged.’ ” We conclude Riemers does not have a defamation claim against the State for this privileged communication.

IV.Unconstitutionality of Support Laws

[¶ 8] Riemers asserts the child and spousal support laws of this state are unconstitutional. He requests injunctive relief declaring the laws unconstitutional and an order requiring the State to repay all of the child and spousal support Riemers has paid since 2000. A party must do more than submit bare assertions to adequately raise constitutional issues. Riemers v. O’Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547. A party asserting a constitutional claim must bring up the heavy artillery or forego the claim. Id. Riemers has cited neither fact nor law to support his assertion the child support laws are unconstitutional and have resulted in a denial of his legal rights. We conclude his request for injunctive relief is without merit and fails to raise a genuine issue of fact requiring a trial on the merits.

V.Unlawful Interest Charges

[¶ 9] Riemers asserts the State charged an unlawful rate of interest on his child support arrearages. The district court concluded, as a matter of law, the interest charges were authorized under N.D.C.C. § 28-20-34. Riemers has conceded this issue, and it is not, therefore, a ground upon which he seeks to reverse the summary judgment dismissing his lawsuit.

VI.False Imprisonment

[¶ 10] Riemers asserts the unconstitutional child and spousal support laws resulted once in his unconstitutional incarceration. He seeks damages of $200,000.

[¶ 11] The trial court concluded Riem-ers was collaterally estopped from raising this issue because it “by logical and necessary implication must have been[ ] litigated and determined” in the prior case of Riemers v. Anderson, 2004 ND 109, ¶ 3, 680 N.W.2d 280. On appeal, Riemers asserts the case referred to by the district court dealt with an arrest for assault in 2000, but Riemers’ alleged false imprisonment in this case involves a subsequent two-week incarceration in the Traill County jail in 2001 for failure to pay child and spousal support.

[¶ 12] Collateral estoppel, or issue preclusion, generally forecloses the reliti-gation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit. Riemers v. Anderson, 2004 ND 109, ¶ 12, 680 N.W.2d 280.

[¶ 13] Assuming the alleged false imprisonment Riemers complains about in this litigation is different from and subsequent to the alleged false imprisonment discussed in prior litigation, then Riemers is not collaterally estopped from litigating the issue in this case. However, Riemers provides no factual details or discussion how and in what manner he was falsely imprisoned. In an affidavit executed by Riemers on July 10, 2006 he simply asserts:

During the year 2001, at the insistence of my ex-wife’s attorney, I was also placed in the Traill County jail for a period of 6 months for arrears in child and spousal support. Only after about two and a half weeks was I able to get released under a writ of habeas Corpus.

Riemers provides no further explanation of how this alleged arrest and incarceration entitles him to the relief he seeks in this case.

[¶ 14] In Zuger v. State, 2004 ND 16, ¶ 8, 673 N.W.2d 615 (quoting Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343) the Supreme Court stated:

“The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.”

[¶ 15] Riemers merely raises a bare allegation that the unconstitutionality of the child and spousal support laws resulted once in his “unconstitutional jailing.” To preclude summary judgment on this issue, Riemers was required to explain the connection between his factual assertion that he was falsely imprisoned and his legal theory that the unconstitutional child and spousal support laws were the cause. He has entirely failed to connect his factual assertions with the law. We conclude Riemers has failed to raise a genuine issue of fact on the false imprisonment issue to warrant a trial on the merits.

VII. Conclusion

[¶ 16] We have reviewed and considered all other issues raised by Riemers on appeal and deem them to be devoid of substance and without merit. We hold Riemers has failed to raise a genuine issue of material fact on any of the claims brought by him against the State and we, therefore, affirm the summary judgment dismissing Riemers’ lawsuit.

[¶ 17] BENNY A. GRAFF, S.J, Chief Judge, WILLIAM F. HODNY, S.J., and RONALD E. GOODMAN, S.J., concur.


source: Caselaw Access Project

author: ERICKSON, Circuit Judge.

license: Public Domain

text:
    2007 SD 94
    CITY OF PLATTE, South Dakota, Plaintiff and Appellee, v. Jerry OVERWEG and Myrna Overweg, Defendants and Appellants.
    No. 24278.
    Supreme Court of South Dakota.
    Considered on Briefs May 21, 2007.
    Decided Aug. 29, 2007.
    Timothy R. Whalen of Whalen Law Office PC, Lake Andes, South Dakota Attorneys for plaintiff and appellee.
    Patrick J. Glover of Danforth & Meier-henry LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   ERICKSON, Circuit Judge.

[¶ 1.] The City of Platte (City) sought and received an injunction enjoining Jerry and Myrna Overweg (Overweg) from using their property for an automobile and glass repair business. Overweg appeals. We affirm.

FACTS

[¶ 2.] Overweg is a resident of Platte, South Dakota. Jerry Overweg was employed at the local Ford dealership and garage on a full-time basis. In 1994, he obtained a sales tax license and began moonlighting doing minor starter and alternator repairs from his garage on property not subject to this action.

[¶ 3.] In 1997, the City began requiring residents to secure a building permit before engaging in any construction activity. Prior to 1997, the City had a zoning ordinance. This zoning ordinance was neither valid nor enforceable because it was enacted without a comprehensive plan being in place. On July 7, 1997, the City adopted a comprehensive plan. Pursuant to this plan, the City enacted a zoning ordinance on November 1, 1999. The zoning ordinance permits certain non-conforming uses that were in effect on the date the zoning ordinance was enacted; however, the nonconforming uses were not to be enlarged upon, expanded or extended.

[¶ 4.] On June 23, 1997, Jerry Overweg received a building permit for a 36' x 50' x 14' metal garage on the property subject to this action. Overweg told the City Council that the permit was for residential purposes. He then constructed the metal garage and, later, their home.

[¶ 5.] The location of the Overweg home and the metal garage are in an R-l District according to the 1999 zoning ordinance. The R-l District is for residential use only. The R-l District does not permit any structure to be used for commercial garages or automobile repair shops.

[¶ 6.] Prior to July 31, 2001, Jerry Ov-erweg filed sales and use tax reports with the South Dakota Department of Revenue every six months for work he did out of his prior garage and his new metal garage. During 1998 through 1999 the gross revenues from Overweg’s repair business were less than $800. In 2000, the sales tax reports show an increase in gross revenues.

[¶ 7.] On or about April 1, 2001, Over-weg terminated his employment with the local Ford garage. He then engaged in the automotive and repair business full-time under the name of Overweg Glass and Auto Repair. The business was located in his metal garage.

[¶ 8.] Overweg agrees that the business violates the current zoning ordinance; however, Overweg contends that the business is grandfathered in under the nonconforming use provisions of the ordinance.

[¶ 9.] The circuit court held that Over-weg’s prior use of the property for automobile repair was sporadic, limited and occasional. It further held that the use of the property as an automotive repair business cannot be grandfathered in under the City’s current zoning ordinance because “the use from and after 2001 to the present is a different use and a significant expansion of the prior use, and not merely an intensification of a prior use.” The circuit court also found that the current use as a glass repair and automotive repair business is illegal and in violation of the current zoning ordinance.

STANDARD OF REVIEW

[¶ 10.] The standard of review is set forth in SDCL 15-6-52(a). It provides that the findings of the trial court “may not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” The trial court’s findings of fact “will not be disturbed unless ... [the Supreme Court] ... is left with a definite and firm conviction that an error was made.” Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 13, 687 N.W.2d 507.

ISSUES

Whether Overweg’s use of the property prior to the enactment of the zoning ordinance was sufficient to establish it as a non-conforming use.
Whether Overweg’s use of the property after the City enacted its zoning ordinance constituted either a different, enlarged, and/or expanded use of their property.
Whether Overweg’s current use of the property is a violation of the City’s Zoning Ordinance.

DECISION

ISSUE

[¶ 11.] Whether Overweg’s use of the property prior to the enactment of the zoning ordinance was sufficient to establish it as a non-conforming use.

[¶ 12.] In Brown County v. Meidinger, 271 N.W.2d 15, 18 (S.D.1978) this Court addressed the issue of the grandfathering of non-conforming uses. This Court found that the appellant has the burden of proving that any prior non-conforming use was, in fact, used for such non-conforming use and was not “a very minimal and sporadic use, incapable of sufficiently exact determination to accord it any grandfather rights.” Id. Further, this Court found that an ordinance “is to be, and should be, strictly construed and any provisions limiting nonconforming uses should be liberally construed.” Id.

[¶ 18.] Overweg’s moonlighting business was originally started at a previous residence as a part-time business doing minor starter and alternator repairs. In 1997 Overweg applied for and received a building permit for a metal garage for residential purposes on the current property. Initially, the metal garage was used for storage of vehicles, recreational equipment and building supplies while the Over-weg’s new home was constructed. The zoning ordinance went into effect November 1, 1999. On or about April 1, 2001, Overweg terminated his primary employment at the Ford garage and began operating Overweg Glass and Auto Repair from his new home and the metal storage garage.

[¶ 14.] Based on Meidinger, supra, the trial court was not clearly erroneous when it concluded that prior to the enactment of the zoning ordinance Overweg’s use of the metal garage for a repair business was minimal and sporadic. At the time Over-weg started using the metal garage to conduct his glass and auto repair business he was employed full time for the Ford Garage. The family moved to the new home near the metal garage in January 1999. During the first six months of 1999 Overweg had $114 in income from the repairs being done in the metal garage. During the second six months of 1999 that amount increased to $163.85. In late 2000 or early 2001 Overweg quit moonlighting in vehicle repair at the request of his employer for at least two months. During the first part of 2001 Overweg did very little repair work while his new residence was being constructed at this site. It was not until May 2001, well after the November 1, 1999 enactment date of the ordinance, that Overweg quit his job with Ford and began working full-time at the metal garage repairing vehicles.

[¶ 15.] Overweg has the burden “to clearly establish the prior use to avail himself of the ‘grandfather rights.’ ” Meidinger, 271 N.W.2d at 18. This Overweg failed to do. Prior to enactment of the zoning ordinance, the use of this metal garage for glass and auto repair was very minimal and sporadic and, incapable of sufficiently exact determination to accord it any grandfather rights.

[¶ 16.] As a result of this decision, we need not address the two remaining issues.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 18.] ERICKSON, Circuit Judge, for MEIERHENRY, Justice, disqualified.


author: ZINTER, Justice.

text:
    2007 SD 92
    Susan PEARSON, Plaintiff, v. Linda O’NEAL-LETCHER, Defendant, and John J. Paul and Dell Rapids Lumber Co., Defendants and Appellees.
    No. 24233.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided Aug. 29, 2007.
    William Fuller, Susan M. Sabers of Fuller & Sabers, LLP, Sioux Falls, South Dakota, Attorneys for appellant, Renee Christensen.
    Michael L. Luce, Eric C. Schulte of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appel-lees, John J. Paul and Dell Rapids Lumber.
   ZINTER, Justice.

[¶ 1.] Renee Christensen, attorney for plaintiff Susan Pearson, appeals the circuit court’s imposition of discovery sanctions against her in two consolidated personal injury cases. The circuit court imposed the sanctions because Christensen had solicited an opinion from plaintiffs physician regarding the permanency of plaintiffs injuries, yet Christensen failed to disclose the physician’s opinion in the defendants’ first discovery request. Rather, Christensen only disclosed the opinion when she later identified the physician as a trial witness. Because we conclude that defendants’ initial request was not specific enough to require disclosure, we reverse.

Facts and Procedural History

[¶ 2.] Susan Pearson was involved in two separate car accidents that resulted in alleged soft tissue and whiplash injuries. Because there were common questions of fact, the cases were consolidated for trial. Christensen represented Pearson in her claims against both drivers and one of the driver’s employers. Defendants John J. Paul and Dell Rapids Lumber Co. (Paul) served interrogatories and requests for production that required the disclosure of Pearson’s “medical records” for ten years preceding the accidents. Although most of the records were initially disclosed, Paul continued to correspond with Christensen because it appeared from the records provided that other treatment records existed. Ultimately, in October 2005, in response to a defense letter indicating that at least one record from Sioux Valley Clinic was still missing, Christensen replied, “we forwarded to you the records that we have in our possession that we have received from that facility, and I am not aware of any other records.”

[¶ 3.] In December of 2005, counsel entered into a stipulated scheduling order for trial. Dr. Allen Unruh was subsequently designated as plaintiffs trial expert. He had opined that some of plaintiffs injuries were permanent. The discovery of his records and opinions are not at issue.

[¶ 4.] The medical records of Dr. Mark Rector, the plaintiffs physician, are at issue. Although Dr. Rector was not initially identified as a trial witness, Christensen identified him in the spring of 2006 as a trial witness that she wanted to depose. Christensen indicated that Dr. Rector would provide the necessary foundation for the plaintiffs medical bills. Because Dr. Rector was then identified as a trial witness, Christensen also produced a previously undisclosed July 5, 2005 letter she had received in response to a June 29, 2005 inquiry she had made of Dr. Rector concerning the permanency of the plaintiffs injuries. In his July 5, 2005 letter, Dr. Rector contradicted Dr. Unruh. Specifically, Dr. Rector reviewed the medical records from the time of his initial medical treatment and opined that plaintiffs injuries were not permanent.

[¶ 5.] Upon learning of Dr. Rector’s opinion, Paul canceled a previously scheduled independent medical examination, and the case was settled. Sanctions for the failure to disclose Dr. Rector’s July 5, 2005 opinion letter then became the issue that is the subject of this appeal.

[¶ 6.] Dr. Rector had been Pearson’s family physician at Sioux Valley Clinic. Although he had not treated her for the acute aspects of the accidents, he had seen her in his office for treatments stemming from the first accident only two days before the second accident.

[¶ 7.] On June 29, 2005, after the litigation was commenced but prior to Christensen’s response to discovery requests, she wrote to Dr. Rector asking for updated medical records. Based upon the treatment he had provided, she also solicited his opinion about the permanency of Pearson’s injuries and prognosis. She wrote:

Our office represents Susan Pearson in regard to the above referenced matter which pertains to two different motor vehicle accidents. I do have a copy of your medical records but would also offer an additional authorization to disclose health information signed by Susan Pearson so that I can obtain any updates in those records from 2-5-2004 to the present. I would also appreciate receiving copies of those additional medical bills.
I do have a few questions in regard to the treatment that you have provided to Susan. They are as follows:
1. What injury did Susan sustain from the motor vehicle accidents which occurred on September 7, 2002 and June 19, 2003?
2. Was the medical care and treatment that you provided and recommended necessary to treat the injuries that Susan sustained as a result of the motor vehicle accidents?
3. Do you think that Susan should have any additional medical treatment, therapy or care as a result of the motor vehicle accidents and the injuries that she sustained and if so, would you identify what you would recommend including medications at this time?
4. Do you think that these injuries Susan sustained from the motor vehicle accidents are permanent and would you tell me briefly what you feel her prognosis is in this regard?
Thank you for your time and consideration in this matter. If there is a cost in assisting our office via this letter, would you please send us your bill and I will make sure it is paid forthwith. Thank you.

In his reply, Dr. Rector opined, among other things, that Pearson’s injuries were not permanent. He stated:

I received your correspondence regarding Susan Pearson on July 5, 2005. I did review the medical records to which we both have access. We are happy to update any medical records that are more recent than February of 2005. In regards to your four questions, on review of the medical records, I find that I did not treat Susan acutely for either her September 7, 2002 or June 19, 2003 accidents. Interestingly, she saw me two days prior to the second motor vehicle accident and we discussed ongoing pain from the first incident. She has also been under the care of physical therapy, which I have recommended for ongoing continued stretching and strengthening exercises. She will likely need intermittent anti-inflammatories and muscle relaxers. With my initial treatment plan, I was hoping to alleviate some of her discomfort and allow her to have a better quality of life.
Finally, I do not feel that the injuries are permanent and she should be able to continue with meaningful activities....

[¶ 8.] Christensen admits that when responding to Paul’s interrogatories and request for production of “medical records,” she did not disclose this letter from Dr. Rector. Christensen later explained that she failed to disclose the letter in the earlier discovery because she considered Dr. Rector a consulting expert employed in anticipation of litigation whose opinion was protected from routine disclosure by SDCL 15 — 6—26(b)(4)(B). She did, however, disclose the letter when she identified him as a trial witness.

[¶ 9.] The circuit court concluded that 1) Dr. Rector was a fact or “actor” witness, not a consulting expert; 2) Christensen impermissibly withheld the letter without a protective order; and 3) Christensen’s response that she had forwarded all records was untrue. Therefore, the court imposed sanctions under SDCL 15-6-37(d). Paul indicated that had he known Dr. Rector’s opinion that Pearson’s injuries were not permanent, the independent medical examination would not have been scheduled. The court imposed sanctions of $973.84 (representing one half the cost in each case of the preparatory and cancellation expenses of the independent medical examination) plus $551.20 in attorney’s fees incurred in pursuing the motion for sanctions. There is no dispute that if Paul was entitled to attorney’s fees for pursuing a sanction motion, the fee request was reasonable.

[¶ 10.] The question on appeal is whether Christensen violated SDCL § 15-6 — 37(d) by withholding Dr. Rector’s opinion letter from the initial discovery. A circuit court discovery sanction under SDCL 15-6-37 is reviewed under an abuse of discretion standard. Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316 (S.D.1979).

We have held that an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. SDCL 15-6-37 gives the trial judge broad latitude in penalizing the party who has failed to comply with discovery orders, however such latitude is not limitless.

Haberer v. Radio Shack, a Div. of Tandy Corp., 1996 SD 130, ¶ 16, 555 N.W.2d 606, 610 (quoting Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D.1994)). Obviously, there must be underlying factual support to find that a discovery violation occurred.

Decision

[¶ 11.] Christensen argues that the circuit court erred because: 1) Dr. Rector was both a treating physician and a consulting expert whose testimony was not routinely discoverable under SDCL 15-6-26(b)(4)(B); 2) the letter was timely disclosed when Dr. Rector was identified as a trial witness; 3) the language of the discovery request did not require disclosure of the letter; and 4) the sanctions awarded were not authorized by SDCL 15-6-37(d). We view the dispositive question as whether the language of the discovery requests required disclosure of the letter. Therefore, we only address Christensen’s third argument.

[¶ 12.] Christensen first points out that Paul’s interrogatories and request for production of documents (hereafter referred to as interrogatories) asked for Pearson’s “medical records” rather than “documents.” She further points out that although “medical records” were requested, that term was not defined, and that while the interrogatories’ definition of “document” would have included the letter, the term “document” was not used in those requests. The circuit court, however, found that “[r]ecords or documents included correspondence,” and that the interrogatories “requested production of these documents,” thus requiring production of correspondence. Our reading of the interrogatories does not support the circuit court’s findings.

[¶ 13.] A review of the interrogatories reflects that, although the word “documents” was defined in the interrogatories to include correspondence, the relevant interrogatories did not ask for “documents.” Instead, the interrogatories asked for “a complete copy of your medical, chiropractic and therapy records relating to your visits to medical providers or chiropractors since the time of this accident”; “a copy of those records” from “all medical providers, doctors, chiropractors or therapists who have treated you in the past ten (10) years”; and “copies of all medical records for treatment received as a result of the alleged occurrence.” (Emphasis added.)

[¶ 14.] SDCL 15-6-26(a) provides for several different methods of discovery, and SDCL 15-6-37(d) authorizes sanctions for failure to respond. Inherent in the statutes, however, is the requirement that a party must request the document at issue before the opposing party is required to comply. In this case, Paul defined the term “document,” which included correspondence, but chose to phrase the relevant interrogatories using the different, undefined term “medical records.” To determine whether Christensen’s initial failure to produce the correspondence failed to comply with this request, we must consider the context in which Pearson’s medical/clinical records and Dr. Rector’s correspondence were created.

[¶ 15.] Pearson’s medical care was provided by Dr. Rector at the clinic, and her medical records were created simultaneously with her visits and treatment. Yet Dr. Rector’s letter was not created in connection with any visit or treatment. Rather, it was created after the relevant treatment, at Christensen’s request in preparation for trial. Dr. Rector’s opinion was formulated on his previously generated medical records and treatment. Considering the nature and timing of both Pearson’s clinic records and Dr. Rector’s letter, and considering the interrogatories’ request for medical “records” instead of “documents,” we find that the interrogatories did not require the production of the post-treatment opinion letter, which was not based on any contemporaneous medical visit or treatment.

[¶ 16.] This is not to suggest that we condone an attorney’s utilization of one expert opinion concluding that an injured party’s injuries are permanent while simultaneously withholding the injured party’s own physician’s opinion that the injuries were not permanent. In this case, however, the question is narrow, and the relevant interrogatories did not require production of Dr. Rector’s post-treatment opinion letter. Therefore, we reverse and need not address the parties’ other arguments.

[l117.] GILBERTSON, Chief Justice, and KONENKAMP, and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 18.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . The dates of the last received medical records are inconsistent between Pearson's letter and Dr. Rector’s response. However, the dates are not pertinent to the resolution of this case.

      . SDCL 15-6-26(b)(4)(B) provides:
      A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in § 15-6-3 5(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

      . Paul’s interrogatories utilized the following definition of "document”:
      "Document” includes any written, recorded, graphic matter, however produced or reproduced, including, but not limited to, correspondence, telegrams, or other written communications, printed material, photographs, drawings, contracts, agreements, notes, memoranda, work papers, diaries, minutes of meetings or any other writings.

      . SDCL 15-6-26(a) provides:
      Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under § 15-6-26(c), the frequency of use of these methods is not limited.

      . SDCL 15-6-37(d) provides:
      If a party or an officer, director, or managing agent of a party or a person designated under subdivision 15 — 6—30(b)(6) or § 15 — 6— 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under § 15-6-33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under § 15-6-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions 15 — 6— 37(b)(2)(A), (2)(B), and (2)(C). In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
      The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by § 15 — 6— 26(c).

      .On appeal, the defense contends that Christensen should have objected to any interrogatories that were "vague and unclear.” They contend that since Christensen failed to object, any objections are now waived. See SDCL 15-6-33(a), SDCL 15-6-34(b) (requiring answers to interrogatories and requests for production unless such interrogatories or requests are objected to). However, Christensen is not contending that the interrogatories were vague or unclear. In fact, she correctly points out that the interrogatories were veiy specific and defined. Therefore, Christensen had no obligation to object to the interrogatories under SDCL 15-6-33(a) or SDCL 15 — 6— 34(b) if they simply failed to ask for the type of document at issue.


author: GILBERTSON, Chief Justice. MEIERHENRY, Justice

text:
    2007 SD 99
    STATE of South Dakota, Plaintiff and Appellee, v. Rayne Ryall ADAMSON, Defendant and Appellant.
    No. 24148.
    Supreme Court of South Dakota.
    Argued April 28, 2007.
    Decided Sept. 26, 2007.

      Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael J. Butler, Attorney at Law, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] On May 3, 2006, Rayne Ryall Adamson (Adamson) was convicted by a jury in the South Dakota First Judicial Circuit, of two counts of witness tampering in violation of SDCL 22-11-19; one count of furnishing alcohol to a minor in violation of SDCL 35-9-1; and one count of furnishing alcohol to a person 18 years of age but less than 21 years of age in violation of SDCL 35-9-1.1. The judgment of conviction was entered on June 8, 2006. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 9, 2005, a Turner County grand jury indicted Adamson on three counts of third-degree rape in connection with his alleged conduct with a minor, A.M.B., in violation of South Dakota’s statutory rape law under SDCL 22-22-1(5); three alternative counts of sexual contact with a child under the age of 16 in violation of SDCL 22-22-7; three counts of witness tampering in connection with alleged conduct involving Rochelle Kjellsen (Kjellsen), A.M.B. and Susan B. (Susan); one count of furnishing alcohol to a minor (A.M.B.); one count of furnishing alcohol to a person 18 years of age but less than 21 years of age (Kjellsen); and one count of violating SDCL 35-10-17 by maintaining a common nuisance as a place used in violation of beverage laws. Prior to trial, the State dismissed two of the statutory rape counts and all three sexual contact counts. The jury trial commenced May 1, 2006. Following the State’s case-in-chief, the trial court dismissed the nuisance charge and the witness tampering count with respect to Kjellsen.

[¶ 3.] The events giving rise to the indictment against Adamson occurred during the summer of 2005. Eighteen-year-old Kjellsen and 14-year-old A.M.B., who lived with her parents and sister, were from Centerville, South Dakota. The two had been friends for several years. During the summer of 2005, A.M.B. was a frequent visitor and overnight guest at the home Kjellsen shared with her boyfriend, Adam Salberg (Salberg). At trial, Kjell-sen testified that Adamson was also a frequent guest in their home that summer.

[¶ 4.] According to Kjellsen, she, Adamson, A.M.B., and Salberg would often “hang out” and “have drinks together” at the home. Kjellsen indicated that Salberg would either go to The Desert Inn, a Cen-terville bar owned by Adamson, to pick up drinks to bring back home or that Adam-son would deliver them: Kjellsen testified that the drinks consisted of “Bud Light, Busch Light” and that they “had screw drivers brought over a lot.”

[¶ 5.] Kjellsen indicated that she and Salberg often had bonfires at night in their backyard. On the night of August 5, 2005, while A.M.B. was visiting, Kjellsen and Salberg had a bonfire. Kjellsen testified that A.M.B. used Kjellsen’s phone to text-message Adamson to have him bring drinks for them. Kjellsen stated that some time between 11:00 p.m. and midnight, Adamson arrived with three or four “screw drivers and some Bud Lights.” Kjellsen said that she “went in the house and put them in the refrigerator.” Adam-son then returned to work at The Desert Inn. Kjellsen testified that A.M.B. drank the screw drivers. Adamson returned to the bonfire around 2:30 a.m. According to Kjellsen, he brought one more screw driver. He also brought other drinks for himself.

[¶ 6.] Kjellsen and Salberg went to bed some time between 3:30 a.m. and 4:30 a.m., leaving A.M.B. and Adamson alone at the bonfire. Kjellsen testified that before going to bed, she told A.M.B. to stay at her house and not to go to Adamson’s house. Adamson’s house was located across the street from the home shared by Kjellsen and Salberg.

[¶ 7.] Kjellsen stated that sometime between 10:30 a.m. and 11:00 a.m. that morning, she was awakened by someone at their door. Dianna B. (Dianna) testified that she came knocking at Kjellsen’s door at that time looking for her younger sister, A.M.B. Dianna left when no one answered the door, but noticed before leaving that A.M.B.’s shoes were not by the door. According to Dianna, A.M.B. would never wear her shoes in Kjellsen’s house and would always leave them by the door. Kjellsen testified that after being awakened, she called Adamson’s cellular phone and told him to have A.M.B. return to Kjellsen’s house. Dianna testified that Kjellsen later told her A.M.B. had stayed at Adamson’s house that night.

[¶ 8.] Dianna conveyed this revelation to her mother Susan. On the night of August 12, 2005, Susan, accompanied by Dianna, confronted Adamson about whether he had sex with A.M.B. Following this discussion, Susan reported to Centerville Police Chief Nolan Clark (Clark) that the 30-year-old Adamson had had sex with A.M.B. At trial, Susan testified that following her report to Clark, she found A.M.B. and told her “that [she] had heard that [A.M.B.] had had sex with [Adamson] and [that A.M.B.] had to go talk to Nolan [Clark].” She further stated that she told A.M.B. “[t]o tell the truth.” Clark testified that following Susan’s report, he interviewed A.M.B. and Kjellsen. Clark indicated that Adamson subsequently became the subject of his investigation. Adamson was interviewed by Clark and denied any wrongdoing.

[¶ 9.] Kjellsen testified that later, on August 12, 2005, she and Salberg were sitting on their front porch when Adamson stopped by. She said that he asked them to “lie about him and [A.M.B.] ” and to arrange a “staged phone call.” Kjellsen stated that she relayed to A.M.B. that Adamson wanted her “to lie about what happened and make a staged phone call.”

[¶ 10.] Clark testified that at about 1:30 a.m. on August 13, 2005, he met with Adamson in the city park at Adamson’s request. At that time Adamson told him that “Susan and [A.M.B.] had made the story up” and “that they wanted to retract their statements.” Clark stated that after the August 12 and August 13, 2005 meetings, he again was contacted by Adamson who requested that he come to his house. There, Adamson played for Clark a recording that he had made of a conversation between him and A.M.B., in which she claimed she had lied about her conduct with Adamson.

[¶ 11.] The Turner County Sheriffs Department requested the assistance of South Dakota Division of Criminal Investigation (DCI) Special Agent James Sever-son (Severson) to investigate Adamson. Severson initially came to Centerville on August 18, 2005, to conference with Clark and review his reports. On August 28, 2005, Severson returned with two other DCI agents and conducted interviews with A.M.B., Kjellsen and Susan.

[¶ 12.] At trial, Kjellsen testified that after her August 23, interview with Sever-son, Adamson called her and asked her to meet him at his house. Adamson then inquired as to the nature of Severson’s questions. Kjellsen told him that Sever-son asked “how many times [Adamson] had sex with [A.M.B.] and where his house was [and] what his bedroom looked like.”

[¶ 13.] Susan testified that between August 23 and September 9, 2005, the day on which the grand jury convened, she had three meetings with Adamson. The two first met on a gravel road outside of Cen-terville. Susan indicated that she called Adamson and initiated the meeting “[b]e-cause [A.M.B.] was changing her story and [he] wanted to know what was going on.” Susan stated that when Adamson was informed of this, he too indicated that “it didn’t happen.” Susan testified that Adamson told her she should tell law enforcement that A.M.B. had changed her story and that she should get her an attorney. Susan indicated that she wanted to talk with an attorney before speaking to law enforcement about A.M.B. changing her story.

[¶ 14.] The second meeting between Adamson and Susan took place at The Desert Inn. Susan testified that she told Adamson she was looking for a lawyer for A.M.B. because she did not want her to get in trouble for changing her statement. Susan indicated that while at The Desert Inn, Adamson assisted her in contacting an attorney for A.M.B. Susan stated that she eventually spoke to Grant Alvine (Alvine), a Sioux Falls, South Dakota attorney, who agreed to represent A.M.B. for a $500.00 retainer. Susan stated that she told Adamson that she did not have $500.00 and asked, “Mould he [Adamson] loan me the money?” to which he agreed. Susan testified that Adamson then took $500.00 cash from a lottery machine and gave it to her.

[¶ 15.] According to Susan, she and A.M.B. met with Alvine on September 8, 2005, the day before the grand jury convened. Susan indicated that following the meeting with Alvine, she met with Adam-son in a parking lot in Beresford, South Dakota. She testified that at that meeting she told Adamson that she had told Alvine “[A.M.B.] was changing her testimony.”

[¶ 16.] Adamson’s trial was held on May 1 through May 3, 2006. The jury found Adamson not guilty of third-degree rape, but convicted him on the two remaining witness tampering charges, related to his conduct with A.M.B. and Susan, and on the furnishing alcohol charges involving A.M.B. and Kjellsen.

[¶ 17.] Adamson appeals raising four issues:

1. Whether the trial court abused its discretion when it denied Adamson’s motion to exclude evidence of his cellular phone records.
2. Whether there was sufficient evidence to support the jury’s verdict of guilt as to the witness tampering counts and whether the trial court erred by denying Adamson’s motion for judgment of acquittal as to the same.
3. Whether there was sufficient evidence to sustain Adamson’s conviction for furnishing alcohol to a minor in violation of SDCL 35-9-1.
4. Whether there was sufficient evidence to sustain Adamson’s conviction for furnishing alcohol to a person over the age of 18, but less than 21 years of age in violation of SDCL 35-9-1.1.

STANDARD OF REVIEW

We presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard. The test for abuse of discretion “is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” If error is found, it must be prejudicial in nature before this Court will overturn the trial courts [sic] evidentiary ruling.

State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544 (internal citations omitted).

The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” “When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”

State v. Running Bird, 2002 SD 86, ¶ 19, 649 N.W.2d 609, 613 (quoting State v. Verhoef, 2001 SD 58, ¶22, 627 N.W.2d 437, 442) (internal citations omitted)).

ANALYSIS AND DECISION

[¶ 18.] 1. Whether the trial court abused its discretion when it denied Adamson’s motion to exclude evidence of his cellular phone records.

[¶ 19.] Some of the telephone records that were cited by the State in its case-in-chief were not provided to Adam-son until April 24, 2006, one week before trial. Adamson filed a written motion on April 28, 2006, to exclude call records for his cellular phone number — 605-677-9077. On May 1, 2006, prior to the commencement of trial, the trial court heard arguments on this motion. Adamson argues that the State was given an unfair advantage when the trial court denied his motion to exclude his cellular phone records or grant his request for a continuance in order to review the call records more thoroughly in advance of the trial. To substantiate his claim Adamson points to his September 13, 2005 motion for discovery in which he called for the State to permit him to inspect and copy or photograph all documents that it intended to use in its casein-chief as provided under SDCL 23A-13-3.

[¶ 20.] The duty of a party to a criminal proceeding to act with diligence in disclosing previously requested information is addressed under SDCL 23A-13-15:

If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

When a party fails to comply with discovery provisions, the trial court may order that the undisclosed evidence be excluded, that a continuance be granted or it may issue any other order it deems just under the circumstances. SDCL 23A-13-17.

[¶ 21.] Five months before trial, on December 7, 2005, the State filed its notice of intent to use phone records including those of Adamson, Kjellsen, A.M.B., The Desert Inn, and Susan. Multiple telephone numbers were registered to Adamson either directly or indirectly through The Desert Inn. Adamson concedes that well in advance of trial, the State supplied telephone records that it obtained through subpoena of various telephone service providers.

[¶ 22.] Reviewing the record reveals that among the 22 subpoenas that the State sent to telephone service providers, one was served upon Western Wireless on September 19, 2005, that commanded it to produce all of Adamson’s phone records for 605-677-9077 from July 1, 2005, through the date of the subpoena. Western Wireless informed the State that Adamson’s service under 9077 had been terminated and that no records existed for the requested period.

[¶ 23.] It was not until April 2006, that the State discovered that Adamson, in 2005, had reactivated 9077 through Verizon Wireless. The State informed the trial court that it then promptly subpoenaed Verison Wireless for the records and upon receipt, faxed them to Adamson’s defense counsel.

[¶24.] Adamson also argues that his service with Western Wireless was not “terminated,” but was merely “transferred” to Verizon Wireless and that the State should thus have been able to provide him the phone records at an earlier date. This is a distinction without difference. ' It was only through diligent review of previously obtained phone records that the State was able to determine that Adamson was continuing to use 9077 and that it might have been reactivated by Verizon Wireless.

[¶ 25.] The trial court, in its decision to deny Adamson’s motion to exclude, pointed out that as opposed to evidence to which he had no access, the records for 9077 were Adamson’s own records that he had the ability to obtain from his service provider at any time. The trial court’s ruling further pointed out that the State’s notice to Adamson of its intent to use his phone records was served upon him five months before trial. Finally, we take note of the diligence, exercised by the State, in obtaining the 9077 records and timeliness in which it then provided them to Adamson. We therefore, conclude that the State satisfied its duty as required under SDCL 23A-1S-3. As such, we find no abuse of discretion by the trial court in denying Adamson’s motion to exclude the cellular phone records or order a continuance.

[¶ 26.] 2. Whether there was sufficient evidence to support the jury’s verdict of guilt as to the witness tampering counts and whether the trial court erred by denying Adamson’s motion for judgment of acquittal as to the same.

[¶ 27.] Adamson claims that there was insufficient evidence to sustain his conviction for either count of witness tampering arguing that the State failed to show that he conferred a benefit on either A.M.B. or Susan with intent to influence them as contemplated under SDCL 22-11-19. Adamson also argues that the State failed to show that he intended to induce either A.M.B. or Susan to testify falsely or withhold evidence.

[¶ 28.] South Dakota’s law prohibiting witness tampering provides in pertinent part:

Any person who injures, or threatens to injure, any person or property, or, with intent to influence a witness, offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding to induce the witness to:
(1) Testify falsely; [or]
(2) Withhold any testimony, [or] information ...
is guilty of tampering with a witness.

SDCL 22-11-19 (emphasis added). Statutes that prohibit witness tampering are designed to criminalize acts that threaten the veracity and cooperation of witnesses. State v. Peck, 459 N.W.2d 441, 443 (S.D.1990) (citing People v. Moyer, 670 P.2d 785, 791 (Colo.1983)). To obtain a conviction, the State is not required to show the defendant succeeded in actually inducing the witness to testify falsely or to withhold information. State v. Charger, 2000 SD 70, ¶ 34, 611 N.W.2d 221, 228. “The focus of anti-tampering statutes is on the actions and intent of the person trying to influence the witness.” Id. (citing Peck, 459 N.W.2d at 443 (citing State v. Bartilson, 382 N.W.2d 479, 481 (Iowa Ct.App.1985))).

[¶ 29.] There is a substantial evidentia-ry basis for the jury to conclude that Adamson was aware on August 12, 2005, that both A.M.B., as the alleged victim, and Susan, as the complainant, were prospective witnesses to a proceeding arising out of allegations of statutory rape involving him and A.M.B. Kjellsen testified that Adamson, upon learning of the allegations, asked her to convey a message to A.M.B. to lie about the alleged rape and to stage a phone call to that effect. Kjellsen stated that she did then relay the message to A.M.B. See Charger, 2000 SD 70, ¶ 36, 611 N.W.2d at 228 (holding that in a case where the defendant’s coercion of a prospective witness was otherwise demonstrated, an act of witness tampering was complete when a third party, at the defendant’s direction, relayed a message to a witness that the witness should not testify against the • defendant). Thereafter, A.M.B. did in fact make the phone call which Adamson recorded on his phone and delivered to Clark.

[¶ 30.] Subsequently, Susan contacted Adamson because A.M.B. had changed her story, to which Adamson told Susan to inform law enforcement and to retain a lawyer for A.M.B. In a second meeting with Adamson at The Desert Inn, Susan requested assistance in finding an attorney for A.M.B., because she was concerned that A.M.B. might get into trouble for changing her story. Susan’s testimony, corroborated by phone records that reveal three phone calls at that time, originating from The Desert Inn and terminating at Alvine’s office, indicates that Adamson did then help her find an attorney for A.M.B. Significantly, Adamson also conferred a benefit on both A.M.B. and Susan in the form of a $500.00 cash loan to pay Alvine’s retainer. See Charger 2000 SD 70, ¶ 36, 611 N.W.2d at 228 (citing Navarro v. State, 810 S.W.2d 432, 437 (TexCtApp 1991) (concluding that the offense of witness tampering was complete when the defendant conferred a money benefit to a witness in a manner calculated to induce false testimony)).

[¶ 31.] Based on the aforementioned evidence as provided through the testimony of Kjellsen, Clark and Susan, we conclude Adamson’s acts reasonably evince an attempt to induce A.M.B. and Susan to provide false testimony or withhold evidence as to the allegations of statutory rape. Therefore, the jury had sufficient evidence to find that the offense of witness tampering was completed when Adamson assisted Susan in retaining an attorney and conferred a $500.00 loan to pay Al-vine’s retainer, therein constituting a money benefit to both A.M.B. and Susan.

[¶ 32.] The aforementioned evidence alone was enough to constitute a prima facie case of witness tampering; thus justifying the trial court’s refusal to grant Adamson’s motion for judgment of acquittal. However, the State presented additional evidence that when viewed in a light most favorable to the verdict the jury could have inferred the acts by Adamson were designed to induce A.M.B. and Susan to testify falsely or withhold evidence. Telephone records revealed numerous completed calls between numbers registered to Adamson and numbers registered to A.M.B., Kjellsen, and Susan. These records show substantial calling activity on or about August 12, 2005, the date that allegations of statutory rape were leveled against Adamson. The records also indicate significant calling activity on or about August 23, 2005, the day DCI agents came to Centerville and interviewed A.M.B., Kjellsen, and Susan. Finally the records show a considerable amount of calling activity on the days leading up to and including September 9, 2005, the day the grand jury convened.

[¶33.] As Adamson asserts, it is true that the State presented these records in a manner that did not delve into the identities of the parties to the calls. Further, it cannot be presumed that all of the calls resulted in conversations, due to the brief duration of some of the connections. Nonetheless, the jury could reasonably infer, due to the sheer volume of the connections, that at least some of the calls resulted in conversations between Adamson and A.M.B., Kjellsen, or Susan. From this evidence, together with Susan’s testimony as to her final meeting with Adamson in Beresford, arranged so he could be updated following her and A.M.B.’s meeting with Alvine, an inference can be drawn that Adamson was managing an effort to control the nature of evidence that A.M.B. and Susan might provide to law enforcement related to the alleged statutory rape.

[¶ 34.] For the foregoing reasons, we conclude that there was both sufficient evidence to support the jury’s verdict and no abuse of discretion by the trial court in refusing to grant Adamson’s motion for acquittal as to the witness tampering counts involving A.M.B. and Susan.

[¶ 35.] 3. Whether there was sufficient evidence to sustain Adamson’s conviction for furnishing alcohol to a minor in violation of SDCL 35-9-1.

[¶ 36.] SDCL 35-9-1 provides in pertinent part: “It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years.... ” A.M.B. was 14 years old at all times relevant. Kjellsen testified that both A.M.B. and Adamson were frequent guests, during the summer of 2005, in the home that she and Salberg occupied. Kjellsen also testified that the four would drink at the house and that Adamson would frequently provide the alcohol. Kjellsen further testified that on the night of August 5, 2005, A.M.B. text-messaged Adamson to bring drinks to Kjellsen’s and that Adamson complied by bringing screw drivers and beer. Kjellsen then stated that A.M.B. consumed the screw drivers on that occasion. Based on Kjellsen’s testimony, we conclude that there was sufficient evidence for the jury to find Adamson guilty of furnishing alcohol to A.M.B. in violation of SDCL 35-9-1.

[¶ 37.] 4.Whether there was sufficient evidence to sustain Adamson’s conviction for furnishing alcohol to a person over the age of 18, but less than 21 years of age in violation of SDCL 35-9-1.1.

[¶ 38.] SDCL 35-9-1.1 provides in pertinent part:

It is a Class 2 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person who is eighteen years of age or older but less than twenty-one years of age unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age....

[¶ 39.] Kjellsen was an 18-year-old unmarried person at all times relevant to this case. Based on her testimony that Adamson frequently provided alcohol that she and others consumed in her home during the summer of 2005, we conclude there was sufficient evidence for the jury to find Adamson guilty of furnishing alcohol to Kjellsen in violation of SDCL 35-9-1.1.

[¶ 40.] Affirmed.

[¶ 41.] SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 42.] MEIERHENRY, Justice, concurs in part and dissents in part.

MEIERHENRY, Justice

(dissenting in part and concurring in part).

[¶ 43.] I dissent on issues one and two. After reviewing the record, it is my opinion that the trial court abused its discretion by not granting the defendant’s motion relating to the last minute disclosure of the telephone records one week before trial. The late-disclosed evidence consisted of approximately 130 pages, which listed over 6500 phone calls from the cellular phone number 605-677-9077 dating from July 1, 2005, to April 17, 2006. The question is not whether the State was diligent in turning over the records when it received them; the question is whether the late disclosure prejudiced the defendant in preparing a defense. State v. Krebs, 2006 SD 43, ¶ 19, 714 N.W.2d 91, 98-99 (citing State v. Michalek, 407 N.W.2d 815, 818-19 (S.D.1987)). Mr. Butler pointed out to the trial court that he needed more time to investigate who was using the cellular phone, who was on the other end of the call, whether the call terminated in a conversation with someone at the number dialed, and if so, the length of the conversation. Mr. Butler asked to exclude the records at trial, or in the alternative, for more preparation time in order to counter the State’s claim that the calls in some way proved the rape and the tampering charges against Adamson.

[If 44.J The trial court denied the defense motion because the records were the defendant’s own records and thus he had “the ability to get [them] from his company at any time.” That may be true; however, he did not know until a few days before trial that the State intended to use the phone records from this cellular phone number as evidence against him. Adam-son had several phone numbers that were used in conjunction with his business. It is unreasonable to expect that he could look at a listing of 6500 phone calls from several prior months and know who used the number to make the calls, who may or may not have been on the other end of the call or the content of the call if completed.

[¶ 45.] These phone records were integral to the State’s theory of the case. As this Court stated in State v. Krebs, the probable effect of inculpatory evidence on a “jury is, in part, evidenced by its prominence in the State’s final argument.” 2006 SD 43, ¶ 22, 714 N.W.2d 91, 100. In closing argument, the State repeatedly draws the jury’s attention to these phone records and the inference that Adamson “was talking to the witnesses in this case and he was doing it in a secretive manner.” The State called A.M.B. as a witness and asked no questions of her concerning phone calls. The State asked only a few questions of A.M.B. concerning her age, when she met the defendant and her cellular phone number. The State also called Susan who testified about her conversations with the defendant. Susan does not testify that Adamson induced her or A.M.B. to testify falsely or to withhold testimony or information. Without direct evidence or testimony that Adamson intended to influence A.M.B. or Susan to lie or withhold testimony or information, the State relied on inferences drawn from the phone records as to the number of calls, the alleged person contacted and the possible content of the phone calls to prove its case.

[¶ 46.] In State v. Packed, we reaffirmed that “an accused must ‘be afforded a meaningful opportunity to present a complete defense.’” 2007 SD 75, ¶ 27, 736 N.W.2d 851, 860 (citing State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.1988) (citations omitted) (emphasis added)). When inculpatory evidence is included, or exculpatory evidence excluded, without affording a defendant an opportunity to respond to the State’s case against him, he is “effectively deprived of a ‘fundamental constitutional right to a fair opportunity to present a defense.’ ” Id. ¶ 27 (citing State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 608-09 (quoting Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986))).

[¶ 47.] I would hold that the trial court abused its discretion by not granting the defendant’s motion to exclude the phone records or by not continuing the trial to allow Adamson more time to prepare his defense.

[¶ 48.] I also dissent on the second issue and would reverse because of insufficient evidence to support the jury verdicts as to the witness tampering counts. The majority concludes that there was sufficient evidence and that Adamson conferred a benefit on Susan and A.M.B. in order to influence their testimony by giving Susan $500.00 to retain an attorney. However, the testimony of the State’s own witness belies the claim that the $500.00 was given to Susan in order to alter or influence her or A.M.B.’s testimony.

[¶ 49.] Susan testified under oath that the $500.00 was given as a loan and that she borrowed the money because she feared A.M.B. would face perjury charges. The following testimony was elicited from Susan at trial:

Q. Did Mr. Adamson ever threaten you to get you to testify differently or withhold information?
A. No.
Q. Did he ever promise to give you something if you would do that for him?
A. No.
Q. Did he ever make any threats about A.M.B.?
A. No.
Q. Did he ever promise that he would do something for her? Give her money? Give her something?
A. No.

[¶ 50.] Susan also testified that she grew more and more concerned that she needed an attorney because of conversations with a DCI agent about A.M.B. Susan testified that a DCI agent had informed her that, as a result of the incident with Adamson, A.M.B. could be taken away from her and she could be charged with neglecting A.M.B. These were the concerns that led Susan to seek out an attorney and ask for $500.00 from Adam-son.

[¶ 51.] The State’s evidence is that Adamson gave Susan money to hire a lawyer for A.M.B. in order that A.M.B.’s rights were protected. The State claims this money was intended to induce A.M.B. to testify falsely. Yet with advice from A.M.B’s own lawyer, it would be more likely that she would testify truthfully.

[¶ 52.] When we determine the “sufficiency of the evidence on review, the question presented is whether there is evidence in the record, which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt” accepting all the evidence and drawing the most favorable inferences “fairly drawn therefrom, which will support the verdict.” State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421.

[¶ 53.] All the State had was a list of dialed numbers from Adamson’s cellular phone — the recipient and content of which were unknown — and the money Adamson gave to Susan to hire a lawyer for A.M.B. The list of dialed numbers does not prove that Adamson made the calls or that A.M.B. or Susan received the calls, and these are not fair inferences to draw from the unverified evidence presented. Even if one were to assume some of the calls were from Adamson to A.M.B. or Susan, the State presented no evidence that the subject of the phone calls was to induce them to lie in court. Additionally, giving a potential witness money to hire her own lawyer should not infer an intention to induce that witness to lie in court. Accepting all the evidence presented by the State and making all fair and reasonable inferences, the evidence is insufficient to prove beyond a reasonable doubt that Adamson was guilty of the witness tampering charges. I would reverse on issue one and two and affirm on the other two issues.

      . The State introduced evidence of numerous telephone calls between numbers registered to Adamson and Kjellsen from the night of August 12 through August 13, 2005. A summary of telephone records from August 5, 2005 through September 9, 2005, was entered into evidence as State’s Exhibit 6. The records summarized calling activity for telephone numbers registered to Adamson, Kjellsen, The Dessert Inn, and Susan. From the night of August 12 through August 13, 2005, State's Exhibit 6 lists 22 calls originating from a number registered to Adamson that terminated to Kjellsen’s number and 11 calls originating from Kjellsen’s number that terminated to numbers registered to Adamson.

      . The recording was entered into evidence as State's Exhibit 7, a DVD-RW on which a copy of the conversation was recorded, and State’s Exhibit 8 — Adamson’s cellular phone on which the conversation was originally recorded.

      . Between 5:09 p.m. on August 23 and 9:03 p.m. on August 24, 2005, State’s Exhibit 6 lists 10 phone calls originating from a number registered to Adamson and terminating at Kjellsen's number.

      . State’s Exhibit 6 indicates that at 5:14 p.m. on September 7, 2005, a call was placed from Susan’s home phone that terminated to a number registered to Adamson.

      . State's Exhibit 6 indicates that on September 4, 2005, six telephone calls were placed between a number registered to Adamson and Susan’s home phone. At 2:46 a.m. one call was placed from Susan’s home phone that terminated at Adamson’s number. Between 3:09 a.m. and 3:47 a.m., five calls were placed from Adamson’s number that terminated at Susan’s home phone. Each of the calls that originated from Adamson's number were made using the *67 feature. This feature is used to block calling name and number identification information on an individual call basis. Quest Dex Official Directory, Sioux Falls, 33 (August 2007).

      .State’s Exhibit 6 indicates that on the morning of September 8, 2005, three telephone calls, originating from The Desert Inn, terminated at Alvine's office in Sioux Falls.

      . Alvine testified that his records indicated that his office actually received $400 as a retainer.

      . State's Exhibit 6 indicates that on the night of September 9, 2005, after the grand jury had met, six calls were originated from a cellular telephone registered to A.M.B. that terminated to a number registered to Adam-son.

      . Since Alvine testified that his office collected $400.00 for the retainer, the jury could reasonably infer that Susan kept $100.00 of the $500.00 “loan” for herself.