author: MEIERHENRY, Justice.

text:
    2005 SD 15
    Carol THORNTON, as Guardian Ad Litem for her son, Rinard Yellow Boy, Jr., Plaintiff and Appellee, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, as Employer and Entity; the Rapid City Police Department, Defendants, and Officer Tony Harrison, jointly and severally and individually, Defendant and Appellant.
    No. 23167.
    Supreme Court of South Dakota.
    Argued on Nov. 16, 2004.
    Decided Jan. 26, 2005.

      Robin L. Zephier of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Timothy J. Becker of Banks, Johnson, Colbath, Sumner & Kappelman, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This is an intermediate appeal from a denial of Summary Judgment concerning claims against a Rapid City police officer for assault and battery and violation of civil rights. We affirm.

PROCEDURAL BACKGROUND

[¶ 2.] Carol Thornton, as Guardian Ad Litem for her son, Rinard Yellow Boy, Jr., filed a lawsuit against the City of Rapid City, the Rapid City Police Department, and Officer Tony Harrison for negligence, assault and battery, negligent training, negligent supervision, negligent hiring, and violation of his civil rights under 42 U.S.C. § 1983. The claims against the City of Rapid City and the Rapid City Police Department were dismissed on summary judgment. The only claims remaining are against Officer Harrison for assault and battery and civil rights violations. The officer appeals the denial of summary judgment on these claims.

[¶ 3.] Officer Harrison asserts that the trial court erred by not dismissing both claims. Concerning the state law assault and battery claim, the officer maintains that his physical contact with Yellow Boy was privileged. Concerning the claim for civil rights violations, the officer asserts that he is protected by qualified immunity. The trial court rejected Harrison’s arguments and ruled there were genuine issues of material fact to be decided by the trier of fact and denied summary judgment.

STANDARD OF REVIEW

[¶ 4.] Our standard of review on summary judgment is well-settled:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party, and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Citibank (S.D.), N.A v. Hauff, 2003 SD 99, ¶ 10, 668 N.W.2d 528, 532 (citations omitted). Whether the facts viewed most favorably to the nonmoving party entitle the moving party to judgment on the merits as a matter of law is a question of law. We review questions of law de novo. State v. Jensen, 2003 SD 55, ¶ 8, 662 N.W.2d 643, 646 (citations omitted).

ISSUES

1. Whether the trial court erred when it failed to rule that Officer Harrison is entitled to a common law privilege, codified at SDCL § 22-18-2, protecting him from Yellow Boy’s claims for assault and battery.

2. Whether the trial court erred when it failed to rule that Officer Harrison is entitled to qualified immunity protecting him from Yellow Boy’s claim for civil rights violations.

DECISION

[¶ 5.] This appeal was properly taken from the denial of summary judgment. Again we note that we must view the evidence in the light most favorable to Yellow Boy. Citibank (S.D.), N.A., 2003 SD 99, ¶ 10, 668 N.W.2d at 532. In order for Officer Harrison to prevail on summary judgment we must find that, even accepting Yellow Boy’s version of the facts, Officer Harrison’s actions were privileged and entitled him to qualified immunity as a matter of law.

Privileged conduct

[¶ 6.] We begin with the issue of whether the officer’s conduct is privileged, thereby protecting him against the state law assault and battery claim. A police officer’s common law privilege to use force is codified as follows:

To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when necessarily committed by a public officer in the performance of any legal duty or by any other person assisting him or acting by his direction.

SDCL 22-18-2. “Under [this] South Dakota statutory authority, the force used by a police officer is unlawful when it becomes greater than necessary to carry out his duties.” Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 23, 580 N.W.2d 606, 612. Thus, the question on summary judgment is whether, accepting Yellow Boy’s version of the facts, Officer Harrison used force greater than necessary to carry out his duties. If it was greater than necessary, it was appropriate for the trial court to deny summary judgment on the state law assault and battery claim.

[¶ 7.] The facts in the light most favorable to Yellow Boy indicate that Officer Harrison was dispatched to the location of a reported non-felony disturbance, possibly involving a fight and destruction of property. When he arrived there were a number of people running up an alley and one person was shouting “there they go.” Officer Harrison ran up the alley in pursuit of these individuals. Eventually, Officer Harrison caught sight of a male, the Plaintiff, walking down the sidewalk in the same direction as the running individuals.

[¶ 8.] According to Yellow Boy, he was calmly walking down the sidewalk to get a soda from a nearby Mini Mart when several individuals ran by and around him. Approximately ten seconds later, Yellow Boy was violently tackled from behind by the officer. Yellow Boy’s wrist was broken in the encounter. Officer Harrison admittedly did not ask Yellow Boy to stop or otherwise warn him that he was approaching. Instead, the officer ran towards Yellow Boy over a distance of many feet and, according to Yellow Boy, knocked him to the ground from behind and.collapsed on top of him with his full weight. The officer then placed Yellow Boy in handcuffs despite pleas that his wrist was injured. Only after Yellow Boy was placed in handcuffs, did the officer investigate who he was and what he was doing. The police learned that Yellow Boy was not involved in the reported criminal activities and was merely a fifteen year old boy innocently walking to the store. The officer removed the handcuffs and took him home.

[¶ 9.] We recognize the importance of the privilege granted to officers' in the performance of their duties. However, where the nonmoving party in a summary judgment motion presents facts from which a trier of fact could find excessive conduct on the part of the officer, summary judgment would be error. Here, the factual scenario taken, in the light most favorable to Yellow Boy raises an issue of material fact as to whether the force used was greater than necessary. Thus, it was not error for the trial court to deny summary judgment on the assault and battery claim.

Violation of Civil Rights and Qualified Immunity

[¶ 10.] We next turn to the issue of whether qualified immunity shields the officer from Yellow Boy’s claim that the officer violated his civil rights. “Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known.” Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir.2004) (quoting Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996)). The parties agree that the constitutional claim in this case is for a violation of the Fourth Amendment based on the excessive use of force. This Court previously applied a three part test when evaluating an excessive use of force claim in conjunction with a qualified immunity defense. Swedlund v. Foster, 2003 SD 8, ¶ 19, 657 N.W.2d 39, 48. This test required us to determine (1) if the complaint alleged a violation of the plaintiffs constitutional rights, (2) if the constitutional rights were clearly established and (3) if a reasonable officer would understand that what he/she was doing violated the plaintiffs constitutional rights. Id. Since our decision in Swedlund, the federal courts have clarified their qualified immunity analysis and now present it as a two part inquiry. See Brosseau v. Haugen, — U.S. -, 125 S.Ct. 596, 598-99, 160 L.Ed.2d 583 (2004); Littrell, 388 F.3d at 582. While this analysis is essentially the same as that in Swedlund, for the sake of uniformity and clarity we apply the analysis in its more recent two part form, which controls.

[¶ 11.] First the claim itself is to be analyzed, and then the qualified immunity defense. See Parks v. Pomeroy, 387 F.3d 949, 956-57 (8th Cir.2004); Kuha v. City of Minnetonka, 365 F.3d 590, 601-02 (8th Cir.2003). A court must ask the following questions: (1) “ ‘Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’ ” Brosseau, — U.S.-, 125 S.Ct. at 598, 160 L.Ed.2d 583 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272, 281 (2001)); and (2) “if so, the next, sequential step is to resolve the qualified-immunity claim by asking whether the right was clearly established.” Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 1753, 158 L.Ed.2d 636, 639 (2004) (Justice Scalia, dissenting) (quotations and citations omitted). The two step analysis is the result of the separate nature of the excessive use of force claim and the qualified immunity defense. See Hays v. Ellis, 331 F.Supp.2d 1303, 1306 (D.Colo.2004) (“Qualified immunity is an affirmative defense to a section 1983 action”) (citation omitted).

Violation of a Constitutional Right

[¶ 12.] When considering the first question of whether the force used by the officer was excessive “the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994). In Littrell, the Eighth Circuit Court of Appeals explained it this way:

First, courts must consider whether, “[t]aken in the light most favorable to the party asserting injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” [Saucier, 533 U.S. at 201,121 S.Ct. 2151.]
To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, “the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865, 104 L.Ed.2d 443. The Supreme Court has instructed, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443. “Circumstances such as the severity of the crime, whether the suspect posed' a threat to the safety of the officers or others, and whether the suspect was resisting arrest are all relevant to the reasonableness of the officer’s conduct.” Foster v. Metro Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir.1990). “In addition to the circumstances surrounding the use of force, we may also consider the result of the force.” Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003); Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir.1985) (stating that, in considering the reasonableness of force used, the extent of any resulting injuries is relevant).

Littrell, 388 F.3d at 582-83. Officer Harrison alleges that even if Yellow Boy’s version of the facts is accepted, the force used was objectively reasonable under the circumstances; therefore, summary judgment should have been granted.

[¶ 13.] Initially we note that the objective reasonableness of the officer’s actions under the first prong of the qualified immunity analysis, which determines whether a constitutional violation has occurred, is a jury question. The following language from Littrell is informative in this regard:

The district court properly submitted the issue of excessive force to the jury, and the jury found that Officer Franklin violated Ms. Littrell’s constitutional right to be free from excessive force. See Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir.1990) (“The question for the jury is whether, judging from the perspective of a reasonable officer at the scene of the arrest, the totality of the circumstances justifies the use of the force used.”); see also, Billingsley v. City of Omaha, 277 F.3d 990, 995-97 (8th Cir.2002) (approving the submission of Eighth Circuit Model Jury Instruction (Civil) 4.10 for jury determination of an excessive force claim under the Fourth Amendment’s reasonableness standard); Goff v. Bise, 173 F.3d 1068, 1073-74 (8th Cir.1999) (affirming a district court’s denial of an officer’s motion for judgment as a matter of law on the issue of excessive force where the evidence was sufficient to create a jury question as to whether the officer used an objectively unreasonable amount of force); Jackson v. Crews, 873 F.2d 1105, 1107-08 (8th Cir.1989) (rejecting an officer/defendant’s challenge to excessive force instructions following a jury determination that the officer/defendant used excessive force).

Id. at 584. Therefore, if the evidence, viewed in a light most favorable to Yellow Boy, is such that a reasonable jury could find the force used by the officer was not objectively reasonable under the circumstances, summary judgment as to the first prong of the qualified immunity analysis would be improper. See Kuha, 365 F.3d at 600; Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir.1990).

[¶ 14.] Given the factual scenario described by Yellow Boy, we cannot say as a matter of law that the force employed by Officer Harrison was objectively reasonable under the circumstances. See generally Goff v. Bise, 173 F.3d 1068, 1073-74 (8th Cir.1999). The officer was responding to a non-felony disturbance call and the officer had no reason to believe that Yellow Boy was a threat to the safety of himself or others. Based on Yellow Boy’s version of the facts, the officer was not forced to make a split-second judgment about the appropriate way to detain Yellow Boy, rather, he had many seconds to make this judgment as he was approaching Yellow Boy from behind. The suspect was not resisting, as he was not even made aware of the officer’s presence or desire to stop and question him. Finally, the force used resulted in Yellow Boy’s wrist being broken. The officer made no assessment of the suspect’s willingness to cooperate before applying this force. See Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001) (“Less than deadly force that may lead to serious injury may be used only when a strong governmental interest warrants its use, and in such circumstances should be preceded by a warning, when feasible.”). Even though the officer could reasonably have believed the man had just left the scene of the disturbance, under these circumstances violently tackling the walking man from behind without warning and with such force as to break his wrist, is not objectively reasonable as a matter of law. This issue must go before a jury to determine the facts and, in light of its factual determinations, whether the force used was excessive under the circumstances. See Littrell, 388 F.3d at 584.

Clearly Established Right

[¶ 15.] Under the first prong of the inquiry we have determined that a jury could find that the officer violated Yellow Boy’s constitutional rights. Therefore, we reach the second prong of the qualified immunity inquiry, which deals directly with the defense of qualified immunity and “requires courts ‘to ask whether the [constitutional] right was clearly established.’ ” Id. at 582 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 2156, 150 L.Ed.2d at 281). “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Sauci er, 533 U.S. at 202, 121 S.Ct. at 2156-57, 150 L.Ed.2d at 282. As very recently stated by the United States Supreme Court:

Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U.S. at 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (qualified immunity operates “to protect officers from the sometimes ‘hazy border between excessive and acceptable force’ ”). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id., at 201, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272.

Brosseau, — U.S.-, 125 S.Ct. at 599, 160 L.Ed.2d 583. Thus, if the constitutional prohibition to the force used by the officer was not clearly established, qualified immunity applies to the officer’s actions.

[¶ 16.] “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (citing Saucier, 533 U.S. at 201-202, 121 S.Ct. at 2156, 150 L.Ed.2d at 282). The court in Littrell stated:

The second step of the qualified immunity inquiry will ... shield the officers from suit ... if their conduct was objectively legally reasonable in light of the information they possessed at the time of the alleged violation. See Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396. In other words, if the officers’ mistake as to what conduct the law required is reasonable, they are entitled to the immunity defense. Saucier, 533 U.S. at 205, 121 S.Ct. 2151, 150 L.Ed.2d 272. Defendants will not be immune, however, “[’]if, on an objective basis, it is obvious that no reasonably competent officer would have concluded’ that the defendant should have taken the disputed action.” Winters v. Adams, 254 F.3d 758, 766 (8th Cir.2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

Littrell, 388 F.3d at 583 (citing Kuha, 365 F.3d at 601-02).

[¶ 17.] Again, in a summary judgment action we must accept the version of the facts given by the nonmoving party. If these facts show that “the officers’ mistake as to what conduct the law required is reasonable, they are entitled to the immunity defense.” Id. On the other hand, immunity should not be granted “if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that the defendant should have taken the disputed action.” Id. (citations and quotations omitted). Thus, even if the jury could find that the officer violated Yellow Boy’s constitutional rights, qualified immunity will still apply unless the pre-existing law had clearly established that the action taken by the officer was unconstitutional.

[¶ 18.] Ideally, easelaw involving nearly identical facts will be available to clearly establish the constitutionality or unconstitutionality of an officer’s actions. However, as stated by the U.S. Supreme Court: “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666, 679 (2002) (referencing U.S. v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 1227-28, 137 L.Ed.2d 432, 445-46 (1997)). “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Id. “Even though the facts of a prior case may not be ‘identical,’ the reasoning of that case may establish a ‘premise’ regarding an unreasonable use of force that can give an officer fair notice that his conduct is objectively unreasonable.” Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir.2003) (citing Hope, 536 U.S. at 743,122 S.Ct. at 2517, 153 L.Ed.2d at 680-81).

[¶ 19.] Yellow Boy’s right to be free of the type of apprehension used by the officer under these circumstances was clearly established at the time of this incident. The established law, based upon statutes and prior cases, provided sufficient notice that the officer’s actions would be considered excessive and violative of the suspect’s constitutional rights. Although there may not be prior case law that addresses the specific situation Officer Harrison faced, clearly established precedent may still exist. Lack of a body of case law on the specific circumstances does not automatically entitle an officer to qualified immunity. As one court has pointed out:

Although there is no prior case prohibiting the use of this specific type of force in precisely the circumstances here involved, that is insufficient to entitle [ ][the officer]to qualified immunity: notwithstanding the absence of direct precedent, the law may be, as it was here, clearly established. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (rejecting the notion that officer liability cannot exist “unless the very action in question has previously been held unlawful”). Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct. When “ ‘the defendant [’s] conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts’ that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.1994) (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir.1993)).

Deorle, 272 F.3d at 1285-86; see also Brosseau, — U.S.-, 125 S.Ct. at 599, 160 L.Ed.2d 583 (stating that in an obvious case the general standards of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) can “clearly establish the answer, even without a body of relevant case law.”).

[¶ 20.] Federal courts have established that under circumstances similar to those faced by Officer Harrison, before detaining a suspect by forcefully tackling him to the ground, the officer should have first given the suspect an opportunity to stop voluntarily. See Deorle, 272 F.3d at 1285 (“Less than deadly force that may lead to serious injury may be used only when a strong governmental interest warrants its use, and in such circumstances should be preceded by a warning, when feasible.”); Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir.1991) (finding that tackling suspect from behind and placing him in an extremely punishing pain compliance hold was excessive force); Cf. Wilson v. City of Des Moines, Iowa, 293 F.3d 447, 451 (8th Cir.2002) (stating that before using deadly force to prevent escape a warning should be given, if feasible); Cf. Kuha, 365 F.3d at 598 (concluding that a jury could properly find it objectively unreasonable to use a police dog without first giving the suspect a warning and “opportunity for peaceful surrender”). We believe that reasonable officers would know without specific guidance from the courts that tackling a non-felony suspect to the ground from behind where no exigent circumstances exist without first giving him an opportunity to surrender peacefully is unconstitutional.

[¶ 21.] “The scope of an investigative detention is to be keyed to the purposes of the stop, with officers using ‘the least intrusive means reasonably available to verify or dispel [their] suspicion[s] in a short period of time.’ ” U.S. v. Jones, 759 F.2d 633, 642 (8th Cir.1985) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229, 238 (1983)). “Force can only be used to overcome physical resistance or threatened force[.]” Agee v. Hickman, 490 F.2d 210, 212 (8th Cir.1974) (citing the trial court judge); See also Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir.1981) (stating officers may use force to subdue prisoner, if necessary). While admittedly these are fairly broad and general propositions, they do clearly establish that applying substantial force before any resistance at all is encountered is generally unconstitutional. In addition to this general ‘premise’ regarding an unreasonable use of force, there is a limited amount of relevant case-law specifically holding that it may be excessive force to tackle a suspect, to the ground when he is not resisting. See McNew v. Pleasant, 1992 WL 162255, 4 (N.D.Ill.1992) (finding that where officer made no attempt to identify himself or to ask for the suspect’s cooperation, excessive force could be found because the suspect “could have been stopped by simply grabbing him more firmly instead of immediately tackling him and kneeing him in the back.”); Hays, 331 F.Supp.2d at 1309 (“As a result of Graham and a host of other authority in existence in December 1999, a reasonable officer could not believe it was lawful to ‘take-down’ or physically assault a person who did not pose a threat and/or was not actively resisting arrest or attempting to escape.”).

[¶ 22.] We recognize that case-law has clearly established that “[w]hen an arrestee flees or resists, some use of force by the police is reasonable.” Greiner, 27 F.3d at 1355. However, according to Yellow Boy’s version of the facts, he was not fleeing or resisting and was not even made aware of the officer’s presence or desire that he stop.

[¶ 23.] In addition- to the cases establishing unreasonable force under the circumstances, the South Dakota Statutes governing police conduct also put the officer on notice that his actions were illegal and excessive. SDCL 23A-3-4 states:

When arresting a person without a warrant, the person making the arrest must inform the person to be arrested of his authority and the cause of the arrest, and require him to submit, except when the person to be arrested is engaged in the actual commission of an offense or when he is arrested on pursuit immediately after its commission.

SDCL 23A-3-5 states in relevant part:

An arrest is made by an actual or attempted restraint of the person arrested or by his submission to the custody of the person making the arrest. No person shall subject an arrested person to more physical restraint than is reason ably necessary to effect the arrest Any person making an arrest may take from the arrested person all dangerous weapons and property as defined in § 23A-35-3 which the arrested person may have about his person.

(Emphasis added). Pursuant to available caselaw and these statutes, an officer in this State clearly knows that absent some exigent or exceptional circumstances, the officer may not use force without first making a reasonable determination of what, if any, force is necessary. If this were simply an allegation that an officer who justifiably used some force ultimately used more force than necessary, the lack of specific caselaw would be difficult for Yellow Boy to overcome. However, the officer here used substantial force without even waiting for an indication. that force was necessary or giving the suspect an opportunity to cooperate and avoid the application of force. If Yellow Boy’s version of the facts is believed by a jury, the officer’s decision to forego giving Yellow Boy an opportunity to surrender before applying substantial force becomes clearly unconstitutional. See DuFour-Dowell v. Cogger, 969 F.Supp. 1107, 1121 (N.D.Ill.1997) (holding that where officers threw arrestee to the floor and applied substantial pressure to her back, and arrestee was not resisting and gave no indication of fleeing, the actions were so plainly excessive that a lack of closely analogous case-law was not dispositive of the qualified immunity issue). Because under these circumstances using substantial force without first providing the suspect an opportunity to peacefully surrender is a violation of clearly established law, it was not error for the trial court to deny summary judgment on the claim for civil rights violations.

[¶ 24.] Since this case will now proceed in circuit court, we draw the trial court’s attention to the procedure utilized by the federal courts when qualified immunity is an issue. The jury decides the facts; the court decides the question of qualified immunity. The Eighth Circuit Court of Appeals gave this direction to the trial courts:

The issue of qualified immunity, however, is frequently intertwined with unresolved factual questions. Where, as in this ease, factual questions prevent a district court from ruling on the issue of qualified immunity, it is appropriate to tailor special interrogatories specific to the facts of the case. This practice allows the jury to make any requisite factual findings that the district court may then rely upon to make its own qualified immunity ruling. “[S]peeial interrogatories related to [the qualified immunity] defense [are] not improper per se,” Lampkins v. Thompson, 337 F.3d 1009, 1014 (8th Cir.2003), but they must be carefully crafted so that “[t]he fact-finder’s role is limited to determining whether the underlying facts are as the plaintiff has alleged or proved.” McIntosh, 810 F.2d at 1431 n. 8; accord Peterson, 60 F.3d at 476 (granting new trial where district court submitted qualified immunity issue to jury and stating “the role of the jury in the new trial should be limited to determining what the officers knew at the time of the arrest. In light of the jury’s findings, the court should then determine the legal questions of probable cause and qualified immunity.”). On the facts of this case, special interrogatories should have asked (1) whether Ms. Littrell resisted arrest before Officer Franklin forcibly restrained her and (2) whether Officer Franklin knew Ms. Littrel was injured when he continued to handcuff and forcibly place her in the car. Specific findings on these questions of fact would have enabled the district court to address the legal issue of qualified immunity through reference to excessive force standards that are clearly established.
In short, where questions of historical fact exist, the jury must resolve those questions so that the court may make the ultimate legal determination of whether officers’ actions were objectively reasonable in light of clearly established law. See Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir.2002) (“It is important to recognize, however, that a defendant is entitled to have any eviden-tiary disputes upon which the qualified immunity defense turns decided by the jury so that the court can apply the jury’s factual determinations to the law and enter a post-trial decision on the defense.”).

Littrell, 388 F.3d at 585-86.

[¶ 25.] The denial of summary judgment is affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and MILLER, Retired Justice, concur.

[¶ 27.] MILLER, Retired Justice, sitting for KONENKAMP, Justice, disqualified.

      . Yellow Boy’s assertion that this Court does not have jurisdiction is without merit. We granted Officer Harrison's petition for discretionary appeal pursuant to Article V § 5 of the South Dakota Constitution and SDCL 15-26A-3(6) on April 5, 2004. The matter is properly before this Court.

      . We use the vague terms '‘exigent” and "exceptional” intentionally, as it would be difficult to anticipate all circumstances where using force without providing an opportunity for peaceful surrender is appropriate. A few obvious examples of such exigent or exceptional'circumstances would include instances where the suspect has a weapon or is assaulting a third party.


source: Caselaw Access Project

author: MEIERHENRY, Justice. SABERS, Justice KONENKAMP, Justice

license: Public Domain

text:
    2005 SD 13
    STATE of South Dakota, Plaintiff and Appellee, v. Sever Sebastian CALIN, Defendant and Appellant.
    No. 23132.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2004.
    Decided Jan. 26, 2005.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Gary W. Conklin, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Sever Calin appeals his convictions for first degree burglary, attempted first degree burglary, and two counts of injury to property in the second degree. Calin waived a jury trial and pleaded not guilty by reason of insanity. The trial court found him guilty but mentally ill on all charges. Calin appeals claiming it was error for the trial court to reject his insanity defense.

FACTS

[¶ 2.] Calin’s convictions stem from an incident on December 25, 2002, where he broke into and damaged an apartment across the street from where he lived with his mother. According to Calin’s mother, prior to the incident in question Calin “had been acting strange for several days, staying up all night and acting like an animal.” Then at about 4 a.m. on December 25, 2002, Calin left his residence and crossed the street to the apartment house. The house contained two apartments, one on the first floor and one on the second floor, both with separate ground-floor entryways. He first unsuccessfully attempted to kick open the door to the second floor apartment. In the process he jammed the lock, which the occupant did not discover until the next morning. Calin then successfully kicked open the door to the first floor apartment. The tenant was not in the apartment at the time he broke in. While in the apartment, Calin turned on the television set, pulled a hand-railing slightly away from the wall, broke a bathroom faucet, and cut computer wires. He selected from the back of the tenant’s cupboard a set of 6 Winnie the Pooh glasses (leaving undisturbed the other glassware in the cupboard) and a Winnie the Pooh cookie jar. He broke and scattered the broken glass throughout the apartment. Additionally, he carved a rudimentary arrow into the living room wall and put two other small arrow-like markings on the door of the apartment in what appeared to be blood. Calin had cut his . hand during the incident causing small amounts of scattered or smeared blood throughout the apartment, including the tenant’s bedroom. Nothing was missing from the apartment.

[¶3.] The second floor tenants called the police when they were unable to get out of their apartment because of the jammed door. When the police arrived to investigate at approximately 8 a.m., they noticed Calin standing in the yard across the street yelling at them. Calin appeared unkempt and stood barefoot in the cold. One of the officers questioned Calin about where he lived. In response to the officer’s questions, Calin told the officer the lady let him sleep out front. The officer awakened the “lady” in the house, who identified Calin as her son who lived with her. His mother also described Calin’s abnormal behavior the prior evening. The officer retrieved Calin’s shoes from the home and was able to match them with prints left at the scene. Because of Calin’s nonsensical comments and strange demeanor, the officer asked if he was on medication. The officer testified about his conversation with Calin as follows:

He told me, or he asked me if I believed in God, and he made several key remarks as to religion and I answered him that I did. And he asked me if I wanted to hear his sins and confessions. At some point he said that he was it or he asked me what I was doing there, who broke into the house? So I asked him to tell me if he knew anything about it and he said he was the person who broke in the house, that there' was broken glass inside and he was looking for his mouse that someone had stolen.... I asked him if he knew the people who lived there and he said he did not. I read him his Miranda rights, at which time he did not acknowledge the reading of them. He told me that if I didn’t believe in God, then he has said everything he was going to say to me.

The officer arrested Calin and took him to the Minnehaha County Jail. Calin’s strange behavior continued in jail. The medical officer, a registered nurse-, testified that Calin was exhibiting strange behavior shortly after being processed, including defecating and urinating improperly, painting the walls with his feces, and refusing to eat. He was placed in solitary confinement for his own safety. Calin’s behavior continued and somewhat worsened. On January 10, he began hitting his head on the wall until it bled. At this point, the medical officer petitioned for an emergency medical hold and Calin was sent to the Human Services Center (HSC) for an involuntary five day civil commitment. The medical officer testified that he had not petitioned earlier because Calin had not been harming himself until January 10. On January 14, 2003, the Yankton County Board of Mental Illness committed Calin to HSC for an additional 90 days. At HSC, Dr. Ramesh B. Somepalli, the psychiatrist assigned to Calin’s case, initially diagnosed Calin as having a psychotic disorder not otherwise specified and prescribed antipsychotic medication. The original antipsychotic medication was ineffective and eventually Calin was put on a high dose of an antipsychotic called Zydis. When Calin .began refusing to take the medication, the doctors determined forced medication was needed. Calin began receiving forced medication on February 10, 2003. The medication gradually improved the symptoms of this illness until he was no longer exhibiting paranoia, inappropriate behavior or bizarre delusions. Calin was discharged and returned to the Minnehaha County Jail on February 25, 2003 in stable condition.

[¶4.] Calin’s final discharge diagnosis was schizophreniform disorder and cannabis dependence. According to the discharge summary report, schizophreniform disorder is basically a schizophrenic illness in its beginning stages. The cannabis dependence diagnosis was the result of Ca-lin’s admission that he occasionally used marijuana. The report further stated that in the doctor’s opinion, Calin was psychotic at the time of the alleged crime and did not know right from wrong. Calin was, however, found to be competent to stand trial. The improvement in Calin’s condition was attributed to the effectiveness of his medications.

[¶ 5.] Calin waived his right to a jury trial and tried the matter to the court. After hearing all of the testimony and evidence, the trial court rejected Calin’s insanity defense and found the defendant guilty but mentally ill. Calin was sentenced to two concurrent terms of ten years in the South Dakota State Penitentiary, with five years suspended on each. Calin appeals.

ISSUE

Whether the trial court erred in finding the defendant guilty but mentally ill of all charges in light of the defendant’s evidence in support of the affirmative defense of insanity.

DECISION

[¶ 6.] Most of the facts of this case are not in dispute. At issue is whether the trial court’s rejection of the insanity defense is supported by the evidence. Ca-lin entered a plea of not guilty by reason of insanity. Under our statutory scheme, when a defendant enters this plea, he raises insanity as an affirmative defense. SDCL 23A-10-2, 22-5-10. The defendant has the burden of proving he was insane at the time he committed the crime by clear and convincing evidence. SDCL 22-5-10. This is not to say that the State is relieved of its burden of proving all the elements of the offense beyond a reasonable doubt. See Leland v. Oregon, 343 U.S. 790, 793-800, 72 S.Ct. 1002, 1005-08, 96 L.Ed. 1302, 1306-10 (1952). A court or jury can only consider the defense of insanity after finding that the State has proved all the elements of the offense, including mens rea; beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 705, 95 S.Ct. 1881, 1893, 44 L.Ed.2d 508, 523 (1975) (Rehnquist, J., concurring). An insanity defense can only be successful if the defendant proves he did not know the wrongfulness of his action at the time he committed the crime. South Dakota defines insanity as follows:

“Insanity,” the condition of a person temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against him, he was incapable of knowing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial behavior.

SDCL 22-1-2(20). Consequently, the trial court first had to determine that the State had met its burden of proving beyond a reasonable doubt all of the elements of the crime. Then, the court had to determine if Calin was incapable of knowing the wrongfulness of his acts at the time he committed the crimes. Additionally, upon a plea of not guilty by reason of insanity, the law allows a finder of fact to find a defendant guilty but mentally ill. The law provides:

If the defendant raises the defense of “not guilty and not guilty by reason of insanity,” he may be found “guilty but mentally ill” if the trier of fact finds all of the following beyond a reasonable doubt:
(1) The defendant is guilty of an offense; and
(2) The defendant was mentally ill when he committed the offense.

SDCL 23A-26-14. Mental illness is defined at SDCL 22-1-2(24):

[A] substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person’s judgment, but not to the extent that he is incapable of knowing the wrongfulness of his act. Mental illness does not include abnormalities manifested only by repeated criminal or otherwise antisocial conduct!.]

We have previously explained the difference between criminal insanity and mental illness:

The distinction between sanity and mental illness rests upon a finding of knowledge or intent. “Insane people are legally incapable of committing crimes, but those people who are merely ‘mentally 01’ may be held criminally responsible.”

State v. Baker, 440 N.W.2d 284, 288 (S.D.1989) (citing State v. Robinson, 399 N.W.2d 324 (S.D.1987)).

[¶ 7.]" Here, the trial court found Calin guilty but mentally ill. We have previously said a “factfinder’s dfecision on the issue of insanity will not be disturbed unless there is insufficient evidence to support it.” State v. Standing Soldier, 299 N.W.2d 568, 573 (S.D.1980). In reviewing sufficiency of the evidence, we determine, “whether • or not there is evidence in the record which, if believed by [the trier of fact], is sufficient to sustain a finding of guilty [ but mentally ill] beyond a reasonable doubt.” Baker, 440 N.W.2d at 287 (quoting State v. Banks, 387 N.W.2d 19, 27 (S.D.1986))(additional citations omitted). We accept the evidence, “and the most favorable inferences that can be fair-ly drawn therefrom, which will support the verdict.” Id,.; see also State v. Martin, 2004 SD 82, ¶ 41, 683 N.W.2d 399, 412. In this case, the issue is whether there is sufficient evidence for the trial court to have found the defendant guilty but mentally ill or whether, as the defendant urges, the evidence supports by clear and convincing evidence a judgment of not guilty by reason of insanity.

[¶ 8.] In reviewing the sufficiency of the evidence, we look first at the trial court’s written findings. The trial court indicated he was not persuaded by clear and convincing evidence that Calin was legally insane at the time he committed the crime. The court, however, was convinced that Calin suffered from a significant mental illness, i.e. “Schizophreniform Disorder.” The trial court, at the end of the trial, stated:

The Court is making that finding that the defendant committed the offense, but the Court does find from the evidence produced that he does suffer significant mental illness that probably was compelling some of his actions and conduct.

The trial court made no mention on the record of the reasons it was rejecting the insanity defense. The court, however, in its written findings appears to have rejected the insanity defense because of specific concerns with Dr. Somepalli’s opinion on that issue. The court accepted the doctor’s opinion as to the mental illness diagnosis but rejected his opinion as to whether Calin knew the wrongfulness of his actions at the time he committed the crime. Our review must then focus on whether sufficient evidence exists to support the trial court’s judgment.

[¶ 9.] Based on the record, this appears to be a close case. There was certainly sufficient evidence to support a finding of insanity had the court done so. This evidence included the defendant’s bizarre behavior at the time of the crime and shortly before and after the crime, the defendant’s behavior in jail, the defendant’s condition upon commitment to HSC, the requirement of forced medications and the testimony of the psychiatrist that Calin did not know right from wrong at the time he committed the offense. Nevertheless, as we have previously stated: “[E]ven though the evidence may be supportive of the defense of insanity it is the province of the trier of fact, be it judge or jury, to determine whether the defendant was sane or insane at the time of the commission of the crime.” State v. Huber, 356 N.W.2d 468, 475-76 (S.D.1984). The factfinder is the “exclusive judge of the credibility of the witnesses and the weight of the evidence in South Dakota. This includes the weight to be accorded an expert’s testimony concerning the sanity of a defendant.” Id. at 476 (internal citations omitted). The trial court had to judge the credibility of witnesses, including the expert. The court also had to weigh all of the evidence in order to reach his decision. As we have previously stated:

In addition to the opinion evidence of experts and laymen, a defendant’s mental condition may be proved by circumstantial evidence. The acts, conduct and declarations of the defendant, both prior and subsequent to the act charged, as well as at the time of its commission, are admissible to show his mental condition at the time of the act.

State v. Kindvall, 86 S.D. 91, 96, 191 N.W.2d 289, 292 (1971) (internal citations omitted).

[¶ 10.] Here, the court was not persuaded of the defendant’s insanity. The evidence before the court consisted of the psychiatrist’s opinion and the defendant’s “acts, conduct and declarations ..., both prior and subsequent to the act charged, as well as at the time of its eommission[.]” Id. Some of defendant’s actions could have been construed as knowledge on Calin’s part, of the wrongfulness of his actions. For example, shortly after the crime the defendant admitted to the officer that he had been the one who entered the apartment. The defendant also told the officer details of the break-in, including that he „had broken glass and strewn it around the apartment. The defendant had taken off his shoes and cleaned up the cut on his hand. He wanted to know if the officer believed in God and if the officer wanted to hear his confessions. Although his behavior around the time ' of the crime revealed serious mental illness, he appeared to have some touch with reality.

[¶ 11.] The court also perceived problems with Dr. Somepalli’s testimony on the insanity issue. The trial court’s findings listed three areas of the expert’s testimony which raised credibility issues for the court. The court pointed to the doctor’s failure to do a drug screen on Calin, the weakness of his explanation of Calin’s delusions, and the doctor’s lack of knowledge about the victims of the crime and how that may have affected the doctor’s opinion. We also note that the doctor did not observe or speak with the defendant until approximately two weeks after the crime. During that time, the defendant was confined in the county jail. Medical staff in the jail reported that his behavior worsened “off and on” while in jail to the point of harming himself.

[¶ 12.]In weighing the evidence and determining the credibility of the witnesses, the court concluded it was not persuaded by clear and convincing evidence that the defendant was insane at the time of committing the offense. There is sufficient evidence in the record to sustain the court’s finding of guilty but mentally ill.

[¶ 13.] We affirm.

[¶ 14.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶ 15.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 16.] I would reverse because the trial court concluded that Calin failed to prove his affirmative defense of insanity by clear and convincing evidence under SDCL 22-5-10. This is plain error as the statute is unconstitutional. SDCL 23A-44-15 provides: “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” State v. Perovich, 2001 SD 96, ¶ 34, 632 N.W.2d 12, 19.

[¶ 17.] The fatal constitutional defect of SDCL 22-5-10 is that it places upon the defendant “the burden of proving the defense of insanity by clear and convincing evidence.” The State cannot constitutionally require a defendant to do more than raise a reasonable doubt as to his sanity, i.e., the defendant’s burden of persuasion cannot exceed raising “a reasonable doubt.” It is an unconstitutional invasion of the presumption of innocence to exceed this point. S.D. Const., art. VI § 2; Robinson v. Solem, 432 N.W.2d 246, 252 (S.D. 1988) (Sabers, J., concurring in result in part and dissenting in part).

[¶ 18.] The State must prove each and every element of the crime charged beyond a reasonable doubt. Most serious crimes contain an element which overlaps sanity. Therefore, if the defendant raises a reasonable doubt as to his sanity, it becomes constitutionally inconsistent and impossible for the State to prove the overlapping element of the crime beyond a reasonable doubt.

[¶ 19.] Therefore, the statute poses a very great danger for jury confusion and for conviction by less than beyond a reasonable doubt and is unconstitutional. S.D. Const., art. VI § 2; State v. Rough Surface, 440 N.W.2d 746, 760 (S.D.1989) (Sabers, J., dissenting); State v. Baker, 440 N.W.2d 284, 294 (S.D.1989) (Sabers, J., dissenting); Robinson, 482 N.W.2d at 252 (Sabers, J., concurring in result in part and dissenting in part).

[¶ 20.] Even if a majority of the members of this Court do not agree that SDCL 22-5-10 is unconstitutional, for all the reasons set forth in the majority opinion, I am satisfied that Calin proved by clear and convincing evidence that he was insane, that he did not know right from wrong.

[¶ 21.] In addition to the bizarre behavior set forth in paragraphs 2, 3 and 4 of the majority opinion, the only diagnosis in the settled record is that “Calin was psychotic at the time of the alleged crime and did not know right from wrong.” (emphasis added). In the absence of countering information or opinions, this is more than sufficient to establish by clear and convincing evidence that he was not sane and did not know right from wrong at the time of the alleged crime.

KONENKAMP, Justice

(dissenting).

[¶ 22.] The evidence in this case simply does not support a finding of guilt beyond a reasonable doubt. Although the trial judge deserves deference on his credibility findings, and granting the judge’s skepticism on the psychiatric testimony, the record appears uncontradicted that the defendant was incapable of understanding the wrongfulness of the acts charged against him. He should have been found not guilty by reason of insanity. ■

      . Standing Soldier was decided prior to law changes requiring the defendant to prove by clear and convincing evidence the affirmative defense of insanity. The standard of review, however, is still appropriate.

      . Since this case was tried to the court and not to a jury, the court made detailed special findings. SDCL 23A-18-3. (Rule 23(c)).

      . I submit that the state may rest its case after it has made a prima facie showing of defendant’s sanity, and that the burden then shifts to the defendant to go forward with evidence to challenge that showing, but in the final analysis, the burden of proof to prove every element of a charged crime (including the sanity of the defendant) beyond a reasonable doubt is upon the State. Robinson, 432 N.W.2d at 252 (Sabers, J., concurring in result in part and dissenting in part).


author: ZINTER, Justice.

text:
    2005 SD 16
    STATE of South Dakota, Plaintiff and Appellant, v. Derrick E. CAROTHERS, Defendant and Appellee.
    No. 23236.
    Supreme Court of South Dakota.
    Argued on Jan. 12, 2005.
    Decided Jan. 26, 2005.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Sean M. O’Brien, Brookings, South Dakota, Attorney for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] S.T., a four-year-old child, made statements to her mother, a deputy sheriff, and a social worker alleging sexual contact by Derrick Carothers. The State moved to introduce the statements at trial, indicating that S.T. would be available as a witness. The trial court interpreted Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) to preclude use of S.T.’s testimonial statements because they were not subjected to cross-examination at the time they were originally made. We granted the State’s request for an intermediate appeal. We now reverse, concluding that testimonial statements need not be subject to cross-examination at the time they were made if the witness is available and subject to cross-examination at trial.

Facts and Procedural History

[¶ 2.] On October 3, 2003, Mother was in the bathroom of her home when S.T. came in, pushed. a stool up against the ■ door, and locked it. S.T. told Mother that she had been touched in a bad place, indicating her vaginal area. S.T. did not use Derrick Carothers’ name, but said “he” and pointed to Carothers’ location in the dining room. Mother subsequently made an appointment for S.T. to be examined at a medical clinic.

[¶ 3.] Mother and S.T. met with Deputy Sheriff Darin Haider at the clinic. S.T. told Haider that Carothers had licked her in her vaginal area. She also told him that Carothers had placed his hand on her vaginal area and moved it back and forth; that he used his fingers and he did it a lot of times; and, that he put his hand in her pants. She further indicated that his pants were unzipped and that he had licked her, grabbed her, and wanted to kiss her, but she said that she did not want to. S.T. finally indicated that Carothers always wanted to come over and kiss her.

[¶ 4.] On October 8, 20D3, Mother took S.T. to a medical evaluation center called Child’s Voice. Child’s Voice examines children who are possible victims of physical or sexual abuse. S.T. was interviewed there by Colleen Brazil, a social worker with extensive training in interviewing children. Brazil testified that the purpose of the interview was “to gather a history for [the] physician or other medical provider in order for them to diagnose and treat the child.... ” During this interview, S.T. told Brazil that Carothers had showed her his “winkie.” S.T. also gave further details of the alleged sexual contacts.

[¶ 5.] On November 26, 2003, a grand jury indicted Carothers on three offenses: Sexual Contact with a Child Under Sixteen, (SDCL 22-22-7); Kidnapping, (SDCL 22-19-1(2)); and Criminal Pedophilia, (SDCL 22-22-30.1). On December 31, 2003, the State filed a notice of intent to offer S.T.’s statements at trial. The trial court initially indicated that it would admit the statements under SDCL 19 — 16— 38, a statute that permits admission of certain young children’s hearsay statements describing sexual contact, rape, and other forms of abuse and neglect.

[¶ 6.] However, on April 12, 2004, the trial court advised counsel of the March 2004 decision in Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Crawford fundamentally changed Confrontation Clause jurisprudence concerning hearsay. After further hearing on the impact of Crawford, the trial court concluded that the testimonial statements made to the deputy and social worker were inadmissible because under Crawford, the Confrontation Clause only permits admission of testimonial statements that were subjected to cross-examination at the time they were made. The State now appeals.

Analysis and Decision

[¶ 7.] “[A]n alleged violation of a constitutionally protected right is a question of law....” State v. Ball, 2004 SD 9, ¶ 18, 675 N.W.2d 192, 198 (citing State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607). Constitutional questions of law are reviewed de novo. Id.

[¶ 8.] The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to be “confronted with the witnesses against him.” U.S. Const, amend. VI. In construing this amendment, Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had admitted hearsay without confrontation if the statement satisfied certain “firmly rooted” hearsay exceptions or if the statement bore “particularized guarantees of trustworthiness.” In overruling Roberts, Crawford concluded that “[t]he unpardonable vice of the Roberts test ... [was] not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” Crawford at 63, 124 S.Ct. at 1371, 158 L.Ed.2d at 184.

[¶ 9.] Factually, Craivford precluded the use of testimonial statements of an unavailable witness who had not been previously subjected to cross-examination. Id. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197-198. Therefore, the trial court interpreted Crawford to- prohibit “previous testimonial hearsay statements made, even if the alleged victim testifies at trial and is cross-examined at trial.” The trial court reasoned that under Crawford:

“the [CJonfrontation [CJlause isn’t cured as to previous testimonial statements because the alleged victim testifies at trial. There’s no question that the testimony at trial would have some differences .... There would be no immediate confrontation right relating to [certain] exhibits.”

However, in our opinion Crawford does not require prior cross-examination if the witness is subject to cross-examination at trial.

[¶ 10.] First, it must be reiterated that factually, Craivford involved the admissibility of hearsay under the Confrontation Clause where the witness was unavailable. Id. at 40, 124 S.Ct. at 1357, 158 L.Ed.2d at 184-185. Therefore, Craivford logically stated that the Sixth Amendment demanded what the common law required when a witness was unavailable: “a prior opportunity for cross-examination.” Id. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203-204. However, Crawford did not suggest that a prior opportunity for cross-examination was also required if the witness was available for cross-examination at trial. On the contrary, in answering the dissent, the Court expressly rejected a prior cross-examination requirement stating:

we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability, of some out-of-court statements “ ‘cannot be replicated, even if the declarant testifies to the same matters in court.’ ” The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Id at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 198, n. 9 (internal citations omitted).

[¶ 11.] Crawford further emphasized this point by expressly reaffirming its previous holding in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In Green, the Court reviewed California Supreme Court rulings,, which like the trial court here, had held “that prior statements of a witness that were not subject to cross-examination when originally made, could not be introduced ... to prove the charges against a defendant without violating the defendant’s right of confrontation guaranteed by the Sixth Amendment.” 399 U.S. at 150-151, 90 S.Ct. at 1931, 26 L.Ed.2d at 492-493. See also People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968); People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422 (1969). However, Green overruled the California decisions and held that “where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of [the] out-of-court statements does not create a confrontation problem.” Id. at 162, 90 S.Ct. at 1937, 26 L.Ed.2d at 499; Crawford, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197-198, n. 9. Thus, under both Oreen and Crawford, if the declarant is available for cross-examination at the trial, “the Confrontation Clause places no constraints at all on the use of [the declar-ant’s] prior testimonial statements.” Crawford, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 198, n. 9.

[¶ 12.] This conclusion has been confirmed by virtually all of the courts that have had the opportunity to review this issue after Crawford. They agree that Crawford does not apply if the declarant testifies and is subject to cross-examination at trial. In the most recent of these decisions, the Colorado Supreme Court considered a case that is quite similar to the one we are presented with today. See People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.2004). In Argomaniz-Ra-mirez, the court concluded that prior, out-of-court, videotaped statements made by two children to law enforcement officials were admissible (in a child sexual assault case) because the children were available to testify. Id. at 1016. The Colorado court held that “[b]eeause the hearsay de-clarants will testify at trial and will be subject to cross-examination, admission of their out-of-court statements does not violate the Confrontation Clause. [Additionally,] Crawford does not alter ... this important principle.” Id. at 1018.

[¶ 13.] Carothers, apparently anticipating this interpretation of Crawford, moved the trial court to have S.T. declared unavailable as a witness. Carothers argued that “there is little question that the child will be unable to remember and testify at the time of trial as to the statements she gave to a Child’s Voice, to law enforcement and to her mother.” The trial court, however, deferred ruling on the availability issue until trial, stating that “[i]f any unavailability issues come up, they would come up theoretically during or after [S.T.’s] testimony at trial.... ” Therefore, whether S.T. is available to testify at trial is a hurdle that has not been reached, and we agree with the trial court that a ruling at this time is premature.

[¶ 14.] We reverse the trial court’s interpretation of Crawford and conclude that under the Confrontation Clause, prior cross-examination is not required for the admission of a declarant’s hearsay statement if the declarant is available and subject to cross-examination at trial.

[¶ 15.] Reversed and remanded.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . SDCL 19-16-3 8 provides:
      A statement made by a child under the age of ten, or by a child ten years of age or older who is developmentally disabled as defined in § 27B-1-3, describing any act of sexual contact or rape performed with or on the child by another, or describing any act of physical abuse or neglect of the child by another, or any act of physical abuse or neglect of another child observed by the child making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of this state if:
      (1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
      (2) The child either:
      (a) Testifies at the proceedings; or
      (b) Is unavailable as a witness.
      However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. No statement may be admitted under this section unless the proponent of the statement makes known his intention to offer the statement and the particulars of it, including the name and address of the declarant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

      . The trial court concluded that S.T.'s statements to Mother were not testimonial. The admissibility of those statements is not at issue in this appeal.

      . As noted in the trial court's opinion, Crawford was such a recent case that it was "difficult to find any interpretive guidance.”

      . Green explained:
      Viewed historically ... there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. This conclusion is supported by comparing the purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

      It may be true that a jury would be in a better position to evaluate the truth of the prior statement if it could somehow be whisked magically back in time to witness a grueling cross-examination of the declarant as he first gives his statement. But the question as we see it must be not whether one can somehow imagine the jury in 'a better position,' but whether subsequent cross-examination at the defendant’s trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. On that issue, neither evidence nor reason convinces us that contemporaneous cross-examination before the ultimate trier of fact is so much more effective than subsequent examination that it must be made the touchstone of the Confrontation Clause.
      399 U.S. at 158-161, 90 S.Ct. at 1935-1936, 26 L.Ed.2d at 497-499.

      . See Clark v. State, 808 N.E.2d 1183, 1190 n. 2 (Ind. 2004) (stating that the Supreme Court expressly noted in Crawford that, "where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem”); State v. Gorman, 854 A.2d 1164, 1178 (Me.2004) (stating that, according to Crawford, the Confrontation Clause was satisfied when the defendant "was given the opportunity to examine and cross-examine his mother regarding what she did and did not recall and the reasons for her failure of recollection”); Cooley v. State, 157 Md.App. 101, 849 A.2d 1026, 1031 (2004) (holding that "Crawford did not overrule the unbroken line of cases holding that the Confrontation Clause does not operate to exclude pretrial statements made by a witness who actually testifies at trial”); Somers v. State, 156 Md.App. 279, 846 A.2d 1065, 1075 n. 1 (2004) (finding no Crawford violation because the case did not concern an out-of-court statement (testimonial or otherwise) by the witness and the witness was present at trial and available for cross-examination); State v. Tate, 682 N.W.2d 169, 176 n. 1 (Minn. Ct.App. 2004) (stating that because the declar-ant testified at trial and was subject to cross-examination, the Confrontation Clause did not apply to invalidate the hearsay exception); People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401 (N.Y.Sup.Ct.2004) (stating that, under Crawford, a 911 call from a person who testified at trial and was available for cross-examination was admissible, while a 911 call from a person who was unavailable for trial was inadmissible); Crawford v. State, 139 S.W.3d 462, 464 (Tex.App.2004) (stating that "[a] careful reading of the Crawford opinion reveals that its holding applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted”); Wiggins v. State, 152 S.W.3d 656, 659 (Tex.App.2004) (observing that Crawford held that the Confrontation Clause barred from admission into evidence testimonial statements of a witness unless the witness was available to testify, or if the witness was unavailable, if the defendant had had a prior opportunity for cross-examination); State v. McClanahan, 2004 WL 723283 *4, n. 12 (2004) (stating that there was no "Crawford confrontation issue regarding the admission of the child hearsay statement because the declarant was a witness at trial and the defendant had the opportunity to cross-examine” the declarant); See also, Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence vol. 4, § 398.1, 40 (2d ed„ West 1994 and 2004 Supp.) (stating that "Crawford indicated that an opportunity at trial to cross-examine the declarant also suffices to satisfy the concerns underlying the Confrontation Clause.”)


author: KONENKAMP, Justice. SABERS, Justice

text:
    2005 SD 14
    A. Carl VON STERNBERG and Mark A. Von Sternberg, Plaintiffs and Appellants, v. Lawrence CAFFEE, Defendant and Appellee.
    No. 23104.
    Supreme Court of South Dakota.
    Argued Oct. 5, 2004.
    Decided Jan. 26, 2005.

      Casey N. Bridgman of Bridgman and Adel, Wessington Springs, South Dakota, Attorneys for plaintiffs and appellants.
    Kent Shelton of Churchill, Manolis, Freeman, Kludt, Shelton & Burns, Huron, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this dispute over a farm management and cattle partnership contract, we conclude that the trial court should not have allowed defendant to offer evidence about an alleged oral modification to the contract because, in the circumstances of this case, the written contract could be modified only by a contract in writing. We affirm in part, reverse in part, and remand for a new trial on defendant’s counterclaim.

Background

[¶ 2.] A. Carl and Mark A. Von Stern-berg (plaintiffs) own a farm in Buffalo County, South Dakota. On December 18, 1999, Lawrence Caffee (defendant) and plaintiffs entered into a five-year “Management Agreement.” Among other duties, defendant was to manage cattle and farming operations and sell gravel, sand, and rock. Plaintiffs prepaid $166,750 of anticipated expenses to defendant for the year 2000. The parties amended their written contract on February 26, 2000, agreeing that the terms were to take effect retroactively to January 1, 2000. With the amendment, defendant would continue his management responsibilities, but plaintiffs and defendant would be partners in the cattle operation.

[¶ 3.] The Management Agreement included a termination clause: on ninety-days written notice to the other, either party could terminate the contract without cause or penalty. Although the agreement was to last for a period of five years, it required that the parties review the contract annually. If, after the annual review, either party was not satisfied with how the arrangement was transpiring, either side could terminate according to the contract’s termination provision.

[¶ 4.] The first annual review meeting took place in November 2000. In attendance were the parties, along with their accountants, and Don Ensz, Carl Yon Sternberg’s friend and agent. At the meeting, defendant presented plaintiffs with an accounting, indicating that after deducting his expenditures from the $166,750 prepaid expenses, plaintiffs were entitled to $80,660.45. Defendant tendered a check for that amount. Carl Von Sternberg first accepted the check and then, wanting first to research the tax consequences, handed it back to defendant. Both accountants prepared documents indicating that the cattle partnership sustained a loss. As a result, defendant paid $8,914.55 to plaintiffs to settle the cattle operation accounting. For defendant’s sale of gravel, plaintiffs paid him $10,000 as an incentive bonus.

[¶ 5.] Following the annual review meeting, Carl Von Sternberg learned that there were no adverse tax consequences in taking the $80,660.45. He asked defendant for the check, but defendant refused. On January 9, 2001, defendant notified plaintiffs by letter that the contract was terminated. Plaintiffs sued defendant for the $80,660.45 and for breach of contract in overgrazing plaintiffs’ pastures. Defendant counterclaimed, alleging that (1) plaintiffs owed him $25,000 for the sale of gravel, (2) he had earned the $80,660.45, and (3) additional money was owed for other expenditures. Defendant would later support these claims with an accounting prepared long after the November 2000 annual review meeting.

[¶ 6.] The jury returned a $51,490.86 verdict for plaintiffs and a $25,000 verdict for defendant. Accordingly, the court entered a reduced judgment for plaintiffs for $26,490.86. On appeal, plaintiffs raise seven separate assignments of error. We address four issues: (1) whether the sale of gravel obtained from plaintiffs’ land falls within the statute of frauds, thereby precluding oral testimony on a change in compensation terms; (2) whether the court erred in admitting the late accounting created nearly three years after the original accounting was submitted at the annual review meeting; (3) whether the court erred in allowing evidence of projected profits for the sale of cattle; and (4) whether the court erred in granting a directed verdict for defendant on plaintiffs’ claim for breach of contract in overgrazing.

Analysis and Decision A. Statute of Frauds

[¶ 7.] Defendant was to receive compensation at certain fixed rates for farming work and other responsibilities. No rate was fixed for the sale of gravel. Under the Management Agreement as amended on February 26, 2000, compensation for gravel sales was discretionary:

[Plaintiffs] may pay to [defendant], at [plaintiffs’] discretion, performance incentive bonuses. Such bonuses may be paid from time to time, at [plaintiffs’] discretion, and shall be based on [defendant’s] overall performance regarding cropland, the sale of sand, gravel, rock, and similar materials, and the income from resale of real property purchased through the efforts of [defendant]. Nothing in this paragraph shall be construed to require [plaintiffs] to pay any such performance incentive bonuses, nor shall any practice of paying such performance incentive bonuses require [plaintiffs] to pay any future performance incentive bonuses, or to pay such bonuses at certain times.

[¶ 8.] Notwithstanding their written agreement, defendant asserted that plaintiffs’ agent, Don Ensz, orally promised defendant that he would receive as compensation half of all gravel sales. Don Ensz testified that he never made any such promise. The trial court allowed defendant to offer this oral amendment to the Management Agreement as evidence in support of defendant’s counterclaim.

[¶ 9.] Plaintiffs argue that any agreement for compensation on the sale of gravel was a sale of real property governed by the statute of frauds in SDCL 53-8-2(3). They also contend that because the Management Agreement was in writing, any amendment would have to be in writing in accord with SDCL 53-8-7. We need only address the second contention. The Management Agreement was memorialized in writing. SDCL 53-8-7 provides that “[a] contract in writing may be altered by a contract in writing without a new consideration or by an executed oral agreement, and not otherwise.”

[¶ 10.] Defendant’s payment for the sale of plaintiffs’ gravel was set forth in the compensation clause of the contract. Any compensation for the sale of gravel was at plaintiffs’ discretion. Defendant asserts that Don Ensz, Plaintiffs’ agent, materially altered the payment provision entitling defendant to a 50% interest in the gravel sales. Without citing controlling legal authority, defendant insists that it “was not as much a change in the agreement as it [was] a clarification of what the bonus would be.” Such an alteration of a written contract is controlled by SDCL 53-8-7. Defendant does not contend that this was an executed oral agreement. Because all the material provisions of the contract between plaintiffs and defendant were in writing, the alleged modification must also have been in writing. Accordingly, the trial court erred in permitting defendant to testify about the purported oral contract modification.

B. Admission of New Accounting

[¶ 11.] Plaintiffs next argue that the trial court erred in admitting into evidence defendant’s new accounting provided nearly three years after the original accounting was supplied at the last annual review meeting. This new accounting, plaintiffs contend, incorporated items wholly unrelated to the parties’ cattle partnership. The language of the contract provision controlling the cattle agreement states:

In regard to the purchase, sale, and care of cattle, and for purposes of this paragraph ... only, the relationship between the Owner [plaintiffs] and the Manager [defendant] shall be characterized as a partnership.... [Defendant] shall be referred to as the “Managing Partner” and [plaintiffs] shall be collectively referred to as the “Non-managing Partner.”

(Emphasis added.) As such, plaintiffs believe that only accounting evidence of the cattle partnership should have been presented to the jury, not evidence of collateral damages.

[¶ 12.] “In all proceedings connected with the formation, conduct, dissolution, and liquidation of the partnership,” partners are bound to act in the highest good faith toward their copartners. Betts v. Letcher, 1 S.D. 182, 46 N.W. 193, 198 (1890) (citation omitted). Each partner owes a fiduciary duty to the other partners. Hayes v. N. Hills Gen. Hosp., 1999 SD 28, ¶ 55, 590 N.W.2d 243, 253 (citing Betts, 1 S.D. 182, 46 N.W. at 198). It is true that we have quoted authority to the effect that an “accounting and settlement between copartners is a condition precedent to an action by one against another on partnership claims and transactions. ...” Ellenbecker v. Volin, 75 S.D. 604, 609, 71 N.W.2d 208, 210 (1955) (citation omitted). In 2001, however, South Dakota revised its partnership laws. SDCL ch. 48-7A. An accounting is now not necessary for one partner to maintain a cause of action against another partner to enforce rights under the partnership or for separate rights. SDCL 48-7A-405(b).

[¶ 13.] At the conclusion of the trial, the judge instructed the jury that it should determine what amount, if any, plaintiffs were owed under the contract with defendant. The court admitted the accounting evidence defendant provided. Trial courts are vested with wide discretion when making evidentiary rulings. U.S. Bank Nat. Ass’n v. Scott, 2003 SD 149, ¶ 15, 673 N.W.2d 646, 651. We will not disturb these rulings absent an abuse of discretion. In re Estate of Dokken, 2000 SD 9, ¶ 39, 604 N.W.2d 487, 498. This Court has held, too, that when determining damages, a party may present any evidence deemed relevant. See First Premier Bank v. Kolcraft Enter., Inc., 2004 SD 92, ¶ 23, 686 N.W.2d 430, 443; SDCL 19-12-1 (Rule 401); SDCL 19-12-2 (Rule 402).

[¶ 14.] We see no abuse of discretion in allowing defendant to present all relevant evidence to support his claims against plaintiffs for damages.

C. Damages

[¶ 15.] Plaintiffs next argue that the trial court erred by allowing the question of damages stemming from the cattle operation to go to the jury. They objected to the admission of evidence of possible future profits from the cattle operation as being too speculative. Further, plaintiffs argue that the contract controlled the partnership with defendant and that defendant’s assertion that he sustained a loss in profits from the premature sale of the cattle should have been precluded from the jury’s determination of damages.

[¶ 16.] According to the amended “Management Agreement,” defendant, as the managing partner, was endowed with the power and duty to sell, care, and maintain the cattle. Both plaintiffs and defendant, under the contract, would share in any loss or profits relating to the cattle operation. Thus, defendant in his counterclaim maintained that he was entitled to lost profits because plaintiffs forced him to sell the cattle prematurely. It was for the jury to decide whether these allegations were true.

[¶ 17.] Damages must be reasonably certain. McKie v. Huntley, 620 N.W.2d 599, 603 (S.D.2000); SDCL 21-2-1. See Swenson v. Chevron Chem. Co., 89 S.D. 497, 505, 234 N.W.2d 38, 43 (1975). “Reasonable certainty requires proof of a rational basis for measuring loss, without allowing a jury to speculate.” McKie, 620 N.W.2d at 603-04 (citing Drier v. Perfection, Inc., 259 N.W.2d 496, 506 (S.D.1977) (quoting Kressly v. Theberge, 79 S.D. 386, 389, 112 N.W.2d 232, 233 (1961))). “Whether the fact of a loss has been proven to a reasonable certainty is ordinarily a question for the trier of fact.” Keegan v. First Bank of Sioux Falls, 470 N.W.2d 621, 624 (S.D.1991). Furthermore, we review the trial court’s “jury instructions as a whole to determine if they establish a full and correct statement of the law....” Rantapaa v. Black, Hills Chair Lift Co., 2001 SD 111, ¶ 33, 633 N.W.2d 196, 206.

[¶ 18.] The trial court addressed the question of speculative damages in instruction numbers 30 and 33:

[i]f you decide for the defendant on the question of liability you must then fix the amount of money which will reasonably and fairly compensate the defendant for any of the following elements of loss or harm suffered in person or property proved by the evidence to have been proximately caused by plaintiffs conduct, taking into consideration the nature, extent, and duration of the injury, whether such loss or harm could have been anticipated or not, namely:
You may award the defendant the profits defendant lost which were proximately caused by the plaintiffs actions.
Whether any of these elements or damages has been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guesswork or conjecture.
The measure of damages for a breach of contract is the amount which will compensate the aggrieved party for all detriment proximately caused by the breach, or which, in the ordinary course of things, would be likely to result from the breach.
No damages can be recovered for a breach of contract which is not clearly ascertainable in both their nature and their origin.

(Emphasis added.)

[¶ 19.] We conclude that the evidence was properly submitted to the jury with appropriate instructions on causation and damages related to the cattle operation. See C & W Enter., Inc. v. City of Sioux Falls, 2001 SD 132, ¶ 20, 635 N.W.2d 752, 758.

D. Directed Verdict — Overgrazing Damages

[¶ 20.] Lastly, plaintiffs argue that the trial court erred in granting defendant’s motion for a directed verdict, thereby precluding their claim for damages from overgrazing the pastures. Plaintiffs argue that their expert witness provided sufficient testimony about defendant’s breach of contract and the resulting damages for overgrazing the pastures. Under the contract, “[n]o area of pastureland shall be used for grazing at more than a fifty percent (50%) utilization rate. The Managing Partner [defendant] shall ... regularly inspect the pastureland for overgrazing ... and shall otherwise use good husbandry practices in regard to such cattle and pastureland.... ” Applying the contract terms, plaintiffs’ expert testified that defendant had breached the contract by overgrazing the pastures at a utilization rate of 75 to 80%.

[¶ 21.] The trial court ruled that, despite the breach of contract, plaintiffs had failed to prove the extent of the damages sustained on the pastureland. The court found that there was no “evidence upon which the jury could base a finding concerning damages.” There is a difference between having trouble ascertaining the amount of damages once proven and providing evidence that damages were, as a necessary element, actually incurred. “Difficulty in computing damages ought not to be confused with the requirement of proving damages as an essential element for recovery.” McKie, 620 N.W.2d at 604 (citing Seattle Western Indust., Inc. v. David A. Mowat Co., 110 Wash.2d 1, 750 P.2d 245, 249 (1988)).

[¶ 22.] Here, plaintiffs’ expert witness testified to nothing from which damages could be calculated. In reviewing the record and taking into consideration all -the evidence in favor of the nonmoving party, we are unable to find sufficient damage evidence to support plaintiffs’ cause of action for overgrazing the pastures. See Dunes Hospitality, 2001 SD 36, ¶ 30-32, 623 N.W.2d at 492. Plaintiffs’ mere assertion that they could not lease their pastureland for part of the next year was insufficient to prove damages to any degree of reasonable certainty. Because the extent of damages was not established at the trial, plaintiffs failed to satisfy all the essential elements for their claim.

E. Conclusion

[¶ 23.] After deliberating, the jury handed down two verdicts, one for plaintiffs and the other for defendant. Being a general verdict, the award to defendant of $25,000 did not specify what damage or loss it was meant to compensate. Because the jury was improperly allowed to consider the alleged oral agreement on gravel sales, the entire counterclaim verdict must be set aside. Accordingly, although we conclude that some of the damages on the counterclaim were properly submitted, we reverse and remand defendant’s counterclaim for a new trial. In all other respects, the case is affirmed.

[¶ 24.] Affirmed in part, reversed in part, and remanded for a new trial.

[¶ 25.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, concur.

[¶ 26.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 27.] This case presents a real can of worms. The written agreement was modified from time to time and mostly at the insistence of the owners. They insisted on modifications of the written agreement when it was to their advantage and now complain of a modification (not to their advantage).

[¶ 28.] I am satisfied that the trial court and the jury saw this case for what it was. The trial court properly instructed the jury on the issues and it appears the jury did an excellent job of resolving the differences.

[¶ 29.] The award to the Defendant of $25,000 on the counterclaim was the result of a general verdict, without objection or request for any special interrogatories. In the absence of objections to the verdict forms or requests for special interrogatories, the verdicts of the jury should stand. See Miller v. Hernandez, 520 N.W.2d 266, 271 (S.D.1994) (holding that the general verdict form did not allow the Court to determine what, if any, damages awarded by the jury may be subject to prejudgment interest); see also Stormo v. Strong, 469 N.W.2d 816, 825 (S.D.1991) (commenting that the trial courts would be “well advised” to submit special interrogatories to the jury in order to eliminate any confusion over an award of damages and to aid in meaningful appellate review).

[¶ 30.] I would affirm the judgment and therefore I dissent.

      . We consider these issues under the following standards of review: Questions of law are reviewed de novo. In re Estate of Siebrasse, 2004 SD 46, ¶ 18, 678 N.W.2d 822, 827. Interpretation of a contract presents a legal question. Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588 (citations omitted). We review a court’s evidentiary rulings under the abuse of discretion standard. State ex rel. Dep’t Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263 (citations omitted). An erroneous evidentiary ruling will be overturned if it was prejudicial. Id. Error is prejudicial when, " 'in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it.’ ” Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)). We deem jury instructions proper when, as a whole, they correctly and accurately state the applicable law. Dunes Hospitality, L.L.C. v. Country Kitchen Int’l, Inc., 2001 SD 36, ¶ 7, 623 N.W.2d 484, 487-88 (citation omitted). Rulings on directed verdict motions are reviewed under the abuse of discretion standard. Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994).

      . Whether there was actually a final accounting at the last and only review meeting is subject to dispute. The trial court concluded that the material exchanged at that meeting was a “year-end summation,’’ not a partnership final accounting.