author: HALBROOKS, Judge. JOHNSON, Judge,

text:
    STATE of Minnesota, Appellant, v. Dawn Marie MEREDYK, Respondent.
    No. A07-1150.
    Court of Appeals of Minnesota.
    Aug. 12, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael 0. Freeman, Hen-nepin County Attorney, David' C. Brown, Assistant County Attorney, Minneapolis, MN, for appellant.
    Dawn Marie Meredyk, Newport, MN, pro se respondent.
    Considered and decided by HALBROOKS, Presiding Judge; WILLIS, Judge; and JOHNSON, Judge.
   OPINION

HALBROOKS, Judge.

Respondent was charged with multiple counts of felony theft for her part in a long-running swindle. She entered into a plea agreement with the state, part of which required her to pay substantial restitution to her victims. The district court accepted respondent’s guilty plea and sentenced her in accordance with the terms of the agreement. The state now challenges the district court’s subsequent modification of respondent’s restitution obligation, contending that the district court had no authority to modify respondent’s sentence with regard to restitution. In the alternative, the state argues that, even if the district court had the authority to modify respondent’s restitution, it abused its authority in doing so here. We conclude that while a district court has authority to modify the terms of a restitution obligation under Minn. R.Crim. P. 27.03, its modification on this record was an abuse of discretion. We therefore reverse.

. FACTS

Beginning in the late 1990s, respondent engaged in an elaborate scheme in which she stole hundreds of thousands of dollars from her grandparents, J.S. and R.S., who were 86 years old at the time appellant was charged, and her great-uncle, H.J., who was 83, by making repeated claims to them that she required substantial sums of money to pay court fees, attorney bills, fines, and other costs related to unspecified legal problems that she had. Respondent’s claims to be in legal trouble were fabricated. But in order to convince her grandparents and great-uncle of the veracity of her claims over a six-year period, respondent forged the signatures of 16 different judges of this state on more than 200 falsified legal documents and enlisted the assistance of another person who impersonated a court clerk. These falsified documents corroborated respondent’s claims about her legal problems and her ongoing need for money to resolve them. Respondent told her grandparents and great-uncle that she would repay them in full once she received a large settlement. This claim too was fictional. After respondent depleted her victims’ savings accounts through this scheme, she swindled them out of their pension and social-security checks.

Eventually other family members became suspicious of respondent’s actions and contacted authorities. An investigation ensued, and in May 2005, respondent was charged with nine counts of felony theft by swindle and one count of felony aggravated forgery for stealing approximately $400,000 from her grandparents and great-uncle. The district court was initially reluctant to accept the guilty plea and negotiated agreement because the district court felt that respondent should serve time in prison. As a result, the district court rejected the plea agreement at the first sentencing hearing but set it for an additional hearing one week later. At the second sentencing hearing, the district court accepted the negotiated plea agreement, staying execution of respondent’s 42-month prison sentence, placing her on probation for 15 years, and requiring her to pay $400,000 in restitution to her victims as a condition of probation. Another condition of respondent’s probation was that she accept no gifts, financial assistance, or other payment from any of her victims. Two years later, respondent had paid less than $200 in restitution to each victim.

In spite of the substantial harm that they have suffered, respondent’s victims have continually shown her great sympathy. They have repeatedly indicated that they view respondent as a valued member of the family and want only the best for her. Even after other family members raised strong concerns about respondent’s conduct, J.S., R.S., and H.J. stated that they did not want to involve the authorities and refused to assist in the criminal investigation once it was under way.

Consistent with these attitudes, on April 4, 2007, respondent’s victims brought a motion to discharge the remaining balance of her restitution obligation, which was then more than $399,000. The district court held a hearing on the motion on April 16, 2007; neither respondent nor her attorney was present. Respondent’s grandparents were present and represented by counsel, but respondent’s great-uncle was not present because he was hospitalized. The state objected to the hearing on the ground that there was no statutory authority allowing victims to challenge restitution.

Respondent’s grandfather testified that he wanted the remainder of respondent’s restitution obligation to be eliminated because he did not need or want the money and did not “want to leave a big debt” for respondent. He stated that the matter had “been bothering us [for] quite a while” and that he just wanted it “taken care of so that we can rest in peace.” Respondent’s grandmother testified that the restitution “doesn’t serve any purpose as far as we’re concerned, and it’s destroying [respondent], not giving her a chance to go on with her life.” She went on to state that “money ... has no value. And that’s why we want to give [respondent] a chance to be able to make a life for herself.” A close friend of respondent’s grandparents testified that the couple was fully competent to make this decision and that “this is what they want with all their heart.”

In a subsequent order, the district court modified respondent’s restitution obligation by adding a new condition concerning how the obligation could be satisfied. The order directed “[t]he Department of Corrections ... to file an order judgment against [respondent] and thereafter to continue to collect restitution until ... [respondent] makes full restitution” or until a “satisfaction of [the] judgment is filed” by all three of respondent’s victims. The district court stated that this new condition “enable[d] the victims to determine whether or not the full amount of [the] restitution has been” met because if they file documentation stating that respondent has satisfied the judgment “this will end [respondent’s] restitution obligations” under the terms of the obligation as modified. In other words, the modified restitution allows respondent to satisfy the restitution obligation without paying the full amount to which she agreed as part of her plea agreement with the state. The remaining terms of respondent’s sentence were not altered. This appeal by the state follows.

ISSUE

Did the district court abuse its discretion by modifying, over the state’s objection and at the request of the victims, the terms of a restitution obligation that was imposed as part of a negotiated plea agreement?

ANALYSIS

I.

The state argues that the district court did not have jurisdiction or statutory authority to modify the terms of respondent’s restitution obligation under the circumstances. “Issues involving the authority and jurisdiction of the district court are legal issues, which we review de novo.” State v. Jones, 678 N.W.2d 1, 23 (Minn.2004). While the imposition of a sentence within the prescribed limits is a judicial function, State v. Olson, 325 N.W.2d 13, 18 (Minn.1982), “in the absence of statutory authorization, a [district] court has no sentencing power.” Miller v. State, 714 N.W.2d 745, 747 (Minn.App.2006) (quotation omitted). Thus, a district court has no inherent authority to impose terms or conditions of a criminal sentence; this power is vested solely with the legislature. State v. Pflepsen, 590 N.W.2d 759, 764 (Minn.1999). Similarly, a district court has no inherent authority to modify previously imposed terms or conditions of a criminal sentence; such power is also vested with the legislature. See id. at 765 (stating that modification of a restitution obligation after a defendant’s probationary period has expired is not permitted because no statute or rule authorizes such a modification). “Therefore, in analyzing the legitimacy of [a] ... restitution order, [appellate courts] first must look to the legislature’s mandate with respect to restitution.” Id. at 764.

Minnesota Statutes chapter 611A discusses, among other things, certain rights and remedies afforded victims of crime. One of these rights is “the right to receive restitution as part of the disposition of a criminal charge.” Minn.Stat. § 611A.04, subd. 1(a) (2006). Accordingly, the district court is expressly authorized to order restitution when imposing a sentence after conviction of a misdemeanor, gross misdemeanor, or felony. Minn.Stat. §§ 609.10, subd. 1(5), 609.125, subd. 1(4) (2006). A district court is also authorized to impose restitution when it stays imposition or execution of a defendant’s sentence. Minn.Stat. § 609.135, subd. 1 (2006). But these statutes are silent with respect to a district court’s authority to modify previously imposed restitution and, therefore, provide no authority to engage in such modifications. See State v. Johnson, 743 N.W.2d 622, 626 (Minn.App.2008) (stating that “this court cannot add to a statute what the legislature purposely omits or inadvertently overlooks” (quotation omitted)).

In arguing that the district court had no authority to modify the imposed restitution here, the state relies on Minn. Stat. § 611A.04, subd. 1(b) (2006). This statute gives the district court the authority to

amend or issue an order of restitution after the sentencing or dispositional hearing if:
(1) the offender is on probation, committed to the commissioner of corrections, or on supervised release;
(2) sufficient evidence of a right to restitution has been'submitted; and
(3) the true extent of the victim’s loss or the loss of the Crime Victims Reparations Board was not known at the time of the sentencing or dispositional hearing, or hearing on the restitution request.

Minn.Stat. § 611A.04, subd. 1(b).

The state concedes that the first two elements under this section are met, but contends that the third element cannot be met because the extent of the victims’ losses were clearly established at the time of respondent’s sentencing by her own admissions that she stole approximately $400,000 and by her express agreement as part of the plea agreement that the amount of the loss for which she must pay restitution is $400,000. We agree. Because the third element of Minn.Stat. § 611A.04, subd. 1(b), is not satisfied, the district court did not have the authority under this section to modify respondent’s ordered restitution.

The state goes on to argue that because Minn.Stat. § 611A.04, subd. 1(b), expressly addresses restitution modification and the statute’s requirements are not met, the district court had no authority to modify restitution. But this argument imposes an exclusivity on subdivision 1(b) that its plain language does not support. The statute contains no restrictive language prohibiting modification of restitution in other circumstances. Therefore, the state’s attempt to read such exclusivity into the statute in the face of silence is not proper. See Johnson, 743 N.W.2d at 626.

Minn. R.Crim. P. 27.03, subd. 9, also addresses a district court’s ability to modify certain types of sentences and provides independent authority to district courts to undertake the modifications authorized in the rule. See Pflepsen, 590 N.W.2d at 765 (noting how, in addition to the sentencing authority provided by certain statutes, “[t]he Rules of Criminal Procedure likewise grant courts authority” to modify the types of sentences discussed in rule 27.03, subd. 9).

Minn. R.Crim. P. 27.03, subd. 9, authorizes a district court to “at any time correct a sentence not authorized by law” or to “at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.” This court has interpreted Minn. R.Crim. P. 27.03, subd. 9, as providing an accompanying grant of jurisdiction to a district court to perform the actions authorized by the rule. See State v. Cook, 617 N.W.2d 417, 418-19 (Minn.App.2000) (citing Minn. R.Crim. P. 27.03, subd. 9, for the proposition that a “district court has jurisdiction at any time to correct a sentence that is not authorized by law”).

Respondent’s sentence falls within Minn. R.Crim. P. 27.03, subd. 9, because the district court stayed the execution of the imposed prison time for 15 years and modified the restitution aspect of respondent’s sentence less than two years later. Thus, while the district court had no authority to modify respondent’s restitution obligation under Minn.Stat. § 611A.04 (2006), it did have the authority to modify respondent’s sentence under the Minnesota Rules of Criminal Procedure because it did so during a stay of execution.

II.

The state argues that the district court erred in modifying the terms of respondent’s restitution obligation over its objection because the restitution was imposed as part of a negotiated plea agreement. A district court has broad discretion concerning matters of restitution as long as a sufficient factual basis underlies its decision regarding the ordered restitution. State v. Thole, 614 N.W.2d 281, 234 (Minn.App.2000). A district court’s restitution order will not be reversed unless it abuses this discretion. State v. Tenerelli, 598 N.W.2d 668, 672 (Minn.1999). The state raises several reasons that it contends render the particular terms of the district court’s modification an abuse of discretion.

First, the state argues that the district court impermissibly delegated its sentencing power to respondent’s crime victims by allowing them to determine whether or not she has satisfied the restitution obligation. The principle that the state refers to prohibits a district court’s delegation of its authority to impose sentences — which includes imposition of terms and conditions of probation — because this is “exclusively a judicial function.” State v. Ornelas, 675 N.W.2d 74, 80 (Minn.2004) (quotation omitted). Respondent’s restitution obligation was a condition of her probation and thus nondelegable. But it is both permissible and desirable to allow flexibility in implementing and administering the conditions that a district court imposes when sentencing a defendant, including conditions of probation. See State v. Henderson, 527 N.W.2d 827, 829 (Minn. 1995) (distinguishing between imposition and administration of a sentence and stating that “trial judges should not be burdened with administrative issues relating to the implementation of conditions of probation” imposed as part of a sentence).

Here, the district court’s modification allows respondent to satisfy her restitution payment by either full payment of the $400,000, to be collected by the Minnesota Department of Corrections (DOC), or by her victims’ act of filing a satisfaction of judgment. In imposing this condition, the district court delegated no authority to the DOC; the DOC is only implementing the district court’s order by collecting the restitution until it is fully paid or until a satisfaction of judgment is filed. Similarly, the district court did not delegate any sentencing authority to respondent’s victims. The modification affects them only in that if they file a satisfaction of judgment, respondent’s restitution obligation is satisfied. But it is the district court that imposed this particular condition, not the victims. It is not uncommon for third-party assertions to be used by a district court in determining whether a defendant has met a condition of his or her sentence (e.g., a substance-abuse counselor asserting that a defendant convicted of driving while impaired has successfully completed an alcohol-abuse program imposed as a condition of the defendant’s sentence). Accordingly, this particular argument is without merit.

But we are concerned about the fact that the restitution obligation that the district court modified was based on a negotiated plea agreement. Under the plea agreement, the state agreed not to recommend executed prison time in return for respondent agreeing, among- other things, to pay $400,000 in restitution. Given the victims’ attitudes toward respondent’s continued payment of restitution, under the district court’s modified order, respondent will almost assuredly never pay the amount she agreed to pay and that the state relied on when making the concessions contained in the original plea agreement.

The facts here present the unique situation in which the disputed modification of a restitution obligation concerns the obligation’s potential cancellation. This is in contrast to past cases in which the dispute went to a district court’s later imposition of a restitution obligation when none initially existed or to a subsequent increase in the amount of the obligation. See, e.g., State v. Chapman, 362 N.W.2d 401, 404 (Minn.App.1985) (challenge to imposition of a restitution amount significantly higher than that which was contemplated as part of the plea agreement); State v. Raddatz, 345 N.W.2d 798 (Minn.App.1984) (challenge to imposition of a restitution obligation when, as part of a plea agreement, the parties agreed that defendant would be sentenced to executed prison time but there was no agreement as to probation or restitution). In short, this appeal presents an issue of first impression, with our research revealing no case law directly on point. Thus, we begin by examining the general principles informing the nature of plea agreements.

While the law relating to contracts cannot be blindly applied to plea agreements, such agreements are in many ways analogous to a contract between the state and a defendant. “The essence of plea agreements ... is that they represent a bargained-for understanding between the government and criminal defendants in which each side foregoes certain rights and assumes certain risks in exchange for a degree of certainty as to the outcome of criminal matters.” United States v. Porter, 405 F.3d 1136, 1145 (10th Cir.2005). An unqualified promise made as part of a plea agreement must be honored. Kochevar v. State, 281 N.W.2d 680, 687 (Minn.1979). Accordingly, we have stated that a plea agreement expressly omitting restitution “will severely limit” a district court’s otherwise broad discretion to impose such an obligation. See State v. Anderson, 520 N.W.2d 184, 187 (Minn.App.1994) (quotation omitted). Similarly, we believe that when a plea agreement expressly calls for a specific amount of restitution and the district court accepts the agreement, this also severely limits the district court’s discretion to subsequently alter the negotiated amount of the restitution.

Plea agreements can be intricate, and alteration of one condition may alter the nature of the entire agreement. See State v. Misquadace, 629 N.W.2d 487, 491 (Minn.App.2001) (after finding the appellant’s sentence improper, reversing for re-sentencing instead of altering the imposed sentence because “[t]his was an intricate plea agreement involving many crimes.... Everything was interrelated and it would be inappropriate for this court to make piecemeal corrections without regard to the effect of the corrections on the plea bargain.”), aff'd, 644 N.W.2d 65 (Minn.2002).

The modification here was significant, and the condition modified was not merely an ancillary aspect of the plea agreement. In modifying respondent’s restitution obligation in the manner that it did, the district court drastically altered the parties’ bargained-for exchange without the consent of respondent and over the state’s express objections. This is contrary to our case law, which indicates that a district court generally should not alter the terms of a restitution obligation negotiated . as part of a plea agreement if it materially changes the expectations of the parties to the bargain. See Chapman, 362 N.W.2d at 404 (concluding that imposition of a restitution amount that was approximately $31,000 greater than that which was contemplated as part of the plea agreement “materially alter[s] the expectations of the parties to the bargain” and allows for withdrawal of the plea (quotation omitted)); State v. Noreen, 354 N.W.2d 77, 78-79 (Minn.App.1984) (stating that imposition of a restitution obligation of $2,000 materially altered the expectations of the parties, allowing for withdrawal of a guilty plea). Given the sheer magnitude of the alteration to respondent’s restitution obligation and the fact that restitution went to the very foundation of the entire plea agreement, the district court’s modification materially altered the bargained-for exchange underlying the parties’ assent to the agreement.

Respondent was not present at the modification hearing, but the state vigorously opposed the modification. And it is unlikely that the state would have agreed to the terms of the plea agreement absent respondent’s agreement to pay the substantial amount of restitution. By ordering the modification, the district court in effect forced the state to incorporate terms into the plea agreement to which it never consented and with which it does not agree. A district court must accept or reject a plea agreement on the terms as presented to the district court, Minn. R.Crim. P. 15.04, subd. 3, and cannot usurp the position of counsel by negotiating or determining the content of the agreement itself. See State v. Johnson, 279 Minn. 209, 216, 156 N.W.2d 218, 223 (1968) (stating that “the court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself’). Yet the district court’s modification of a specifically negotiated term of respondent’s plea agreement effectively did just that.

Furthermore, Minnesota law expressly addresses how uncollected restitution payments should be processed. If a crime victim, for whatever reason, does not claim his or her restitution payments required to be made by an offender, the payments are to be deposited in a designated crime-victims account maintained as part of the state treasury and paid out annually in the form of reparations to other crime victims. Minn.Stat. §§ 611A.04, subd. 5, 611A.612 (2006). This statutory scheme is, if not directly contravened, certainly undermined, by the district court’s order. See generally State v. Mix, 646 N.W.2d 247, 250 (Minn.App.2002) (“A court abuses its discretion when it acts ... in contravention of the law.”), review denied (Minn. Aug. 20, 2002). Respondent’s obligation as modified will in all likelihood deprive other crime victims of the opportunity to be compensated for their financial losses because she will pay only a miniscule amount of the restitution ordered in her original sentence.

We also note that important policy concerns are raised by allowing unfettered modification of sentence conditions based on plea agreements. The vast majority of criminal cases in Minnesota are resolved without trial. State v. Lussier, 695 N.W.2d 651, 655 (Minn.App.2005) (stating “approximately 97 percent of criminal proceedings in Minnesota are resolved without trial”), review denied (Minn. July 19, 2005). As any criminal law practitioner knows, plea bargains are a substantial reason underlying this fact and constitute an invaluable tool for county attorneys and local prosecutors. But a county attorney or prosecutor who knows that the district court could simply accept the plea agreement and then subsequently alter the sentence imposed as part of the agreement has a disincentive to negotiate an agreement in the first place. The parties to a plea agreement need to be reasonably confident that the conditions that they negotiate are the ones that each side will receive. Unless there are some minimal limits on a district court’s discretion to subsequently alter sentence conditions premised on plea agreements, this will not be the case.

We are not unsympathetic to the victims’ genuine desire that the remainder of respondent’s restitution obligation be discharged. The district court’s responsiveness to these concerns is certainly admirable, and if it were the only consideration, it would be difficult to argue that the district court acted improperly. But there are other factors that must be considered in evaluating the propriety of the ordered modification. Consideration of these factors leads us to conclude that the district court abused its discretion in modifying the terms of respondent’s restitution that was part of a negotiated plea agreement when the state objected to the modification.

DECISION

Respondent’s restitution obligation of $400,000 was imposed as part of a sentence premised on a negotiated plea agreement with the state. The state opposed modification of the terms of this plea-based obligation. We therefore conclude that the district court abused its discretion in modifying respondent’s restitution to permit its discharge without full payment as required in the original sentence.

Reversed.

JOHNSON, Judge,

(concurring specially)-

I concur in the judgment. I respectfully disagree with part I of the opinion of the court, which concludes that the district court had authority to consider the motion that gave rise to this appeal. In my view, it is important to address and to decide significant and fundamental issues raised by the state that are not addressed in the opinion of the court but, rather, are assumed to support the district court’s authority to hear the motion.

There is no provision in rule 27.08, subdivision 9, of the Minnesota Rules of Criminal Procedure for a victim of a crime to bring a motion under the second sentence of that rule. (The first sentence of the rule does not apply here because there is no contention that the restitution obligation was “not authorized by law.” See State v. Humes, 581 N.W.2d 317, 319-20 (Minn.1998); State v. Borrego, 661 N.W.2d 663, 666 (Minn.App.2003).) In addition, there appears to be no caselaw allowing a victim of a crime to bring such a motion. The legislature provided means by which crime victims may participate in criminal proceedings, and those provisions are contained in chapter 611A of the Minnesota Statutes. Among them is a mechanism by which an order for restitution may be amended after a sentencing hearing, Minn. Stat. § 611A.04, subd. 1(b), but this court properly has concluded that the conditions of that statute are not satisfied. In my view, a district court’s consideration of a motion by a crime victim pursuant to the rules of criminal procedure is inconsistent with the legislative policy decisions that are reflected in chapter 611A.

Furthermore, the district court’s decision is inconsistent with chapter 611A’s provision for the disposition of unclaimed restitution payments. “Restitution payments held by the court for a victim that remain unclaimed by the victim for more than three years shall be deposited in the crime victims account created in section 611A.612.” Minn.Stat. § 611 A.04, subd. 5 (emphasis added). The plain language of this statute provides that if the victims of a particular crime do not wish to receive restitution payments, the money must be used to benefit the victims of other crimes. This legislative policy decision should preclude a district court’s consideration of a request to reduce a restitution obligation because the victim of an offense has disclaimed an interest in the funds.

For these reasons, I join in the court’s decision to reverse the district court’s elimination of Meredyk’s restitution obligation.

      . While the state fully briefed the issues presently before us, no brief was filed by respondent. Nevertheless, we will decide this appeal on its merits. See Minn. R. Civ.App. P. 142.03 ("If the respondent fails or neglects to serve and file its brief, the case shall be determined on the merits.”); Minn. R.Crim. P. 28.01, subd. 2 (stating that, unless expressly provided otherwise, the rules of civil appellate procedure govern criminal appeals).

      . In so holding, we do not mean to, in any way, modify or affect other statutory or case law governing or limiting an offender’s ability to request modification of his or her sentence, including in regards to restitution. For example, Minn.Stat. § 611A.045, subd. 3(b) (2006) provides that an offender has 30 days to challenge a restitution obligation. We have strictly applied this time limit and barred challenges brought after 30 days. Ma

        son v. State, 652 N.W.2d 269 (Minn.App.2002), review denied (Minn. Dec. 30, 2002). A district court’s authority under rule 27.03, subdivision 9, to modify a particular aspect of an offender's sentence does not also mean that an offender has the ability to request a modification.

      . Accordingly, this is not a case in which there was no agreement as to restitution and the district court independently imposed and then subsequently modified a restitution obligation. Those facts present a very different question, and we express no opinion about the propriety of the modification of a restitution obligation in that context.

      . A district court is, of course, free to determine aspects of a defendant’s sentence not covered in the plea agreement or those that are left to its discretion.


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice MEIERHENRY, Justice

license: Public Domain

text:
    2008 SD 64
    STATE of South Dakota, Plaintiff and Appellee, v. Richard Aca MOSS, Defendant and Appellant.
    No. 24581.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 11, 2007.
    Decided July 9, 2008.

      Lawrence E. Long, Attorney General, Andrew Kneeht, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Kenneth M. Tschetter, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Richard Aca Moss was convicted of indecent exposure in violation of SDCL 22-24-1.2. Moss appealed the magistrate court jury verdict to circuit court, and the circuit court affirmed. On appeal to this Court, Moss argues that the evidence was insufficient to support the verdict. He also argues that the magistrate court erred in denying his request to submit a jury instruction and argument supporting a theory that he was not guilty of the charged offense because his conduct did not satisfy the elements of the charged offense and the State could have charged him with a related offense. We affirm.

I

[¶ 2.] On the afternoon of February 22, 2006, Moss drove into the parking lot of Elmwood Park, a public park in Sioux Falls, South Dakota. He parked his vehicle next to Ron Miklos’s vehicle. Miklos entered Moss’s vehicle, and the two men engaged in a brief conversation. Miklos then left Moss’s vehicle and walked across the parking lot to speak with Miklos’s former roommate Scott Augustine, who was in a third vehicle.

[¶ 3.] After Miklos entered Augustine’s vehicle, they both noticed two other men parked in a pickup truck a few parking spaces away. Miklos and Augustine were not aware that the two men in the pickup truck were undercover Sioux Falls Police Detectives David Dunteman and Pat Kneip. Miklos and Augustine testified that the men were simulating masturbation and oral sex. They also testified that they believed Dunteman and Kneip were “looking for homosexual activity.” The detectives, however, testified that they were merely observing Miklos and Augustine, and that Miklos and Augustine were frequently looking at the officers and attempting to make eye contact.

[¶ 4.] In any event, after about twenty minutes, Augustine decided to leave the park, and Miklos returned to Moss’s vehicle. Miklos informed Moss what Miklos had observed and that he thought the two men in the pickup truck “might be looking for some gay action.” Miklos and Moss decided to take a walk in the park. They walked over an abandoned bridge located near the northwest corner of the parking lot, went into a wooded area, and noticed that the detectives were following them. After the detectives went under the bridge, Miklos and Moss turned around and proceeded back to the bridge.

[¶ 5.] The bridge is located around thirty-five yards from the parking lot. It is within the clear, unobstructed view of baseball fields, swing sets, and playground equipment. Further, bushes and shrubs only partially obstruct a view of the area under the bridge.

[¶ 6.] The four men met under the bridge at a time when no one else was present in the park. There was a factual dispute whether other individuals were present in vehicles in the parking lot. The four men began a conversation about the weather. Moss and Miklos then asked the detectives why they were at the park. The detectives replied that they wanted to see if “there was any action going on in the park.” Dunteman then said that he and Kneip “liked to watch” and “were looking for a show.” Miklos replied, “Well, we can give you a show, but do me a favor and look out for the police.” Moss then pulled down his pants, and Miklos began performing oral sex on Moss. Dunteman informed Moss and Miklos that he and Kneip were police detectives, and they placed Moss and Miklos under arrest.

[¶ 7.] Moss was charged with indecent exposure, in violation of SDCL 22-24-1.2 (2005). At the close of the State’s case, Moss moved for a judgment of acquittal based on insufficient evidence. Moss also requested to present jury instructions and argument that he was innocent because his conduct may have constituted the uncharged offense of public indecency under SDCL 22-24-1.1 (2005). The magistrate court denied Moss’s request. The jury returned a guilty verdict, and Moss appealed to circuit court. The circuit court affirmed the conviction.

[¶ 8.] On appeal to this Court, Moss raises the following issues: (1) whether there was sufficient evidence to prove the elements of indecent exposure, and (2) whether the magistrate court abused its discretion in refusing to allow Moss to present jury instructions and argument that he may have committed the related, but uncharged offense of public indecency.

II

Sufficiency of the Evidence

[¶ 9.] Our standard of review of the sufficiency of evidence is well-settled.

“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Bordeaux, 2006 SD 12, ¶ 6, 710 N.W.2d 169, 172 (citations omitted). “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.” State v. Motzko, 2006 SD 13, ¶ 6, 710 N.W.2d 433, 437. To determine the sufficiency of evidence in this case, we must interpret and apply the indecent exposure statute. Our review of statutory interpretation is de novo, giving no deference to the circuit court’s conclusions of law. State v. Ducheneaux, 2007 SD 78, ¶ 2, 738 N.W.2d 54, 55.

[¶ 10.] The jury convicted Moss of indecent exposure, in violation of SDCL 22-24-1.2. Under that statute,

A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person’s conduct is likely to annoy, offend, or alarm another person....

SDCL 22-24-1.2. In State v. Plenty Horse, we described the elements of this statute:

To be guilty of the offense, first, defendant must have exposed himself in public. Second, defendant must have exposed himself in public under circumstances he knew would likely offend, annoy, or alarm another person. Third, defendant must have exposed himself in public with “the intent to arouse or gratify the sexual desire of any person.”

2007 SD 114, ¶ 8, 741 N.W.2d 763, 766 (citation omitted).

[¶ 11.] In this case, Moss concedes that he exposed his genitals, that he did so in a public place, and that he did so with the intent to arouse or gratify the sexual desire of a person. Moss, however, asserts that, under the second element, he must have actually known his exposure would likely annoy, offend, or alarm another person. Furthermore, Moss claims this element requires the actual presence of a victim/witness. He argues that because there was no evidence of any witness other than Dunteman and Kneip, the State did not prove that Moss “knew” his exposure was likely to annoy, offend, or alarm another person. We disagree for two reasons.

[¶ 12.] First, even if the presence of an actual victim/witness were required, two victims/witnesses were present. Both detectives were members of the public, who were present enforcing the laws of South Dakota in a public place at the time of the exposure. Although Moss argues that the detectives “impliedly consented to witnessing the exposure” by their statements to Moss and Miklos, the detectives’ use of suggestive language as a law enforcement technique does not mean that the officers could not be offended by Moss’s conduct. We reject Moss’s suggestion that police officers cannot, as a matter of law, be offended by indecent exposure, precluding them from being a victim/witness of the conduct.

[¶ 13.] Second, SDCL 22-24-1.2 does not require actual knowledge that the conduct will offend, annoy or alarm a victim/witness who is present. The second element of the statute only requires that the defendant “must have exposed himself in public under circumstances he knew would likely offend, annoy, or alarm another person.” Plenty Horse, 2007 SD 114, ¶ 8, 741 N.W.2d at 766 (emphasis added). With respect to the knowledge requirement, “[a] person has knowledge if that person is aware that the facts exist which bring the act ... within the provision of any statute.” SDCL 22-1-2(1)(c). Therefore, to commit this offense, Moss must have exposed himself in public being aware that factual circumstances existed that the exposure would likely offend, annoy, or alarm another person. Because this element only requires an awareness that factual circumstances existed under which the exposure would likely offend, annoy or alarm, the test is objective. Furthermore, there is nothing in the text of the statute requiring knowledge that the exposure would cause offense, annoyance, or alarm to some person actually present.

[¶ 14.] Nevertheless, the dissent utilizes five paragraphs of statutory construction aids to add that element to the statute, opining that the exposure must occur in “the presence of a victim.” See infra ¶¶ 33, 35, and 37. The dissent would add that element despite the fact that the actual presence of a victim was an element of the predecessor statute, but that element was repealed when the predecessor statute was revised and reenacted as SDCL 22-24-1.2 in 1998. Notwithstanding the express repealer, the dissent opines “the presence of a victim remains a required element of the crime.” Infra ¶ 37.

[¶ 15.] The dissent’s judicial construction overlooks the plain text and the elementary fact that had the Legislature intended to retain that element, it would have simply retained the prior statutory language “where there is present any person.” See supra n. 1. The dissent also engages in speculative judicial construction without the predicate finding of ambiguity. It ultimately overlooks our often-stated paramount rules of statutory construction:

The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.

Goetz v. State, 2001 SD 138, ¶ 15, 636 N.W.2d 675, 681; In re West River Elec. Ass’n, Inc., 2004 SD 11, ¶ 15, 675 N.W.2d 222, 226. We follow these rules because:

The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain meaning and effect. When the language of a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

Goetz, ¶ 16, 636 N.W.2d at 681 (emphasis original) (citations omitted). Therefore, “we may not, under the guise of judicial construction, add modifying words to the statute or change its terms.” City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶ 13, 568 N.W.2d 764, 767. Because the Legislature explicitly removed the actual presence of a victim element from this version of the indecent exposure statute, this Court should not “construe” that element back into the statute. Even if there were an ambiguity, we could not construe that element into the statute because, as we stated long ago:

[W]hen the Legislature makes a revision of a particular statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory.

Burnett v. Myers, 42 S.D. 233, 235, 173 N.W. 730, 731 (1919).

[¶ 16.] Finally, even if actual presence were an element, and even if Dunteman and Kneip had not been present, the evidence was sufficient for a jury to have found that Moss exposed himself in a public place aware of circumstances under which his exposure was likely to offend, annoy, or alarm another. There was a factual dispute at trial concerning the presence of other victims in other vehicles in the parking lot at the time of the exposure, and Moss does not dispute that the area under the bridge was partially viewable from the parking lot. Moss testified that there were no leaves on the surrounding deciduous trees, and that it was a bright afternoon day. He also testified that he knew he was in a public park where anyone was free to enter or leave, and that at various times there were other people in the parking lot he did not recognize. There is also no dispute that the bridge was within view of baseball fields, playground equipment, a picnic shelter, and a bike path that ran adjacent to the park. Finally, prior to engaging in the act, Miklos, in Moss’s presence, asked the detectives to watch for the police. Moss even testified that at the time of exposure, he had concerns about whether somebody else would arrive. In viewing these facts and the inferences to be drawn therefrom in a light most favorable to the jury verdict, a reasonable jury could have found that Moss was aware that the facts and circumstances of that location were such that his conduct was likely to annoy, offend, or alarm another person.

[¶ 17.] Moss finally points out that indecent exposure is classified as a “sex crime” requiring registration as a sex offender. SDCL 22 — 24B—1 (11). Moss notes that the legislative intent behind the sex offender registration legislation was to protect the public from future victimization. Moss argues that there was no witness/victim in this case, and therefore future revictimization could not occur. From this, Moss concludes that his conduct could not have been a sex crime, and if not, it does not fall under the indecent exposure statute.

[¶ 18.] Moss, however, fails to recognize that no matter what the Legislature’s intent in enacting sex offender registration legislation, sex offender registration is not an element of indecent exposure: it is a consequence of that offense. Therefore, whether indecent exposure is a sex crime under the registration statutes is irrelevant in determining the sufficiency of evidence. Moss also fails to recognize that his conduct was witnessed by at least two victims; and, even if it had not been witnessed, future similar conduct may victimize a member of the public. Moss finally fails to recognize that “the Legislature’s intention in requiring registration was to accomplish the regulatory purpose of assisting law enforcement in identifying and tracking sex offenders to prevent future sex offenses, especially those against children.” Meinders v. Weber, 2000 SD 2, ¶ 13, 604 N.W.2d 248, 255. Therefore, it is reasonable to conclude that the Legislature intended to require people who have committed indecent exposure to register as sex offenders, even if the occurrence was not witnessed by anyone other than police. It is certainly reasonable to assume that the Legislature intended registration in eases where indecent exposure takes place in a public park near children’s playground equipment, which is an area designated as a community safety zone under SDCL 22-24B-22(1).

Ill

Uncharged Offenses

[¶ 19.] Initially, it must be observed that this is not a case in which Moss was ever prohibited from arguing that his conduct did not rise to the level necessary to meet the elements of indecent exposure. In addition to arguing that point, Moss asked the trial court to instruct and let him argue that “there is another charge here [public indecency] that the State could have charged [him] with.” Moss contended that “the jury was entitled to know that another, lesser criminal statute proscribed the offending conduct.” On appeal, Moss concedes that public indecency is not a lesser-included offense of indecent exposure, but argues that the jury should have been instructed and he should have been permitted to argue that the State could have charged the uncharged offense of public indecency.

[¶ 20.] Before the trial court, Moss explained his request as follows:

Public indecency ... is a related offense, and it’s our theory of defense that what happened here meets the elements of that lesser offense, but doesn’t rise to level of indecent exposure, and its — I think we’re entitled to tell that to the jury.... I want to be able to tell the jury that there is another law that covers this conduct]]]

He further explained that without being informed of any alternative, such as [the] public indecency charge, the jury’s only choice was a conviction for the greater charge, [the Class 1 misdemeanor], indecent exposure.

[¶21.] The trial court denied Moss’s proposed instruction, and with respect to his proposed argument ruled: “I think you can make your [argument in] closing and if there’s an objection, we’ll deal with it at that time.” The court further ruled that it was only “inclined, depending on how it was argued that you are arguing jury nullification.” Because these were not final rulings on the argument request, and because Moss has not pointed to any place in the record where he was subsequently precluded from arguing any portion of this theory in closing statements, we decline to review the issue on appeal. See Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D.1980) (providing: “The appellant must affirmatively establish a record on appeal that shows the existence of error. He ... must show that the trial court was given an opportunity to correct the grievance he ... complains about on appeal.”)

[¶ 22.] The remaining question is whether Moss was entitled to his proposed jury instruction that his conduct may have violated a related statute other than the one for which he was charged. Moss’s proposed instruction provided:

The Defendants are charged with Indecent Exposure. As previously instructed, this crime requires a finding by you that the exposure of genitals took place under circumstances that Defendants knew that their conduct was likely to annoy, offend, or alarm another person.
It is a separate crime under South Dakota Law if a person with an immoral purpose, exposes his genitals in a public place, where another person may be present who will be offended or alarmed by the person’s act. This crime of Public Indecency does not require a finding that the Defendants knew that their conduct was likely to annoy, offend, or alarm another person.
If you find that genital exposure occurred in a public place, where another person may be present who will be offended or alarmed by the exposure (Public Indecency), you must acquit the Defendants of the crime charged, unless you also find that the exposure of genitals took place under circumstances in which Defendants knew that their conduct was likely to annoy, offend, or alarm another person.
It is the Defendants’ claim that at most, the facts at issue show the lesser offense of Public Indecency. If you find that Public Indecency as defined above occurred, but without Defendants’ knowledge that their conduct was likely to annoy, offend, or alarm another person, you must acquit the Defendants of the Indecent Exposure charge.

[¶ 23.] “We review a trial court’s refusal of a proposed instruction under an abuse of discretion standard. The trial court has broad discretion in instructing the jury.” State v. Martin, 2004 SD 82, ¶ 21, 683 N.W.2d 399, 406. “Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.” Id. This Court reviews jury instructions as a whole and will not find them erroneous if they correctly state the law and inform the jury. Cody v. Edward D. Jones Co., 502 N.W.2d 558 (S.D.1993).

[¶ 24.] The magistrate court refused the instruction because it did not correctly state the law. We agree for two reasons. First, the last paragraph of the proposed instruction incorrectly omits substantive language that the jury must consider. The indecent exposure statute only requires that the exposure take place “under circumstances in which” the defendant knows that his conduct is likely to annoy, offend, or alarm another person. SDCL 22-24-1.2. Moss’s proposed instruction omits this quoted language, and its omission misstates the applicable law.

[¶ 25.] Second, Moss was not entitled to have the jury instructed on uncharged crimes that were not lesser-included offenses. Moss’s reliance upon Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988) is misplaced. Sanborn held that a defendant was, as his theory of defense, entitled to an instruction on a related offense that was not a lesser-included offense. Id. at 549-50. Moss fails to note, however, that Sanborn was a plurality opinion that was overruled by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006). In Hudson, the defendant argued that he was not guilty of driving while under the influence of alcohol because he was not the driver. To further support his defense, he also argued that he was entitled to a jury instruction on the related offense of alcohol intoxication, which carried a lesser penalty. Like South Dakota, under Kentucky law a “defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions.” Id. at 19 (citation omitted). Nevertheless, Hudson observed that because public intoxication was not a lesser-included offense, the defendant could be convicted of both offenses if properly charged. Thus, the court held that “the fact that the evidence would support a guilty verdict on a lesser uncharged offense does not entitle a defendant to an instruction on that offense.” Id. at 21. Instead, the rule is:

An instruction on a separate, uncharged, but “lesser” crime-in other words, an alternative theory of the crime — is required only when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive.

Id. at 22. Hudson explained that instructing on related but uncharged crimes, whenever the evidence suggests the existence of such crimes, “would allow a criminal appellant to seek reversal of his conviction simply because the trial court failed to instruct as to all the criminal acts he may have committed, regardless of whether the other uncharged crimes have any bearing on guilt as to the charged crimes.” Id.

[¶ 26.] Our jurisprudence supports Hudson’s rule of law. See State v. Goodman, 384 N.W.2d 677, 682 (S.D.1986) (concluding that because simple assault is not a lesser-included offense of child abuse, the trial court did not err in refusing to adopt defendant’s proposed instruction on simple assault); and State v. McGarrett, 535 N.W.2d 765, 769 (S.D.1995) (concluding that because grand theft, aggravated assault, and simple assault do not constitute lesser-included offenses of first-degree robbery, the trial court did not err in denying defendant’s proposals).

[¶ 27.] In this case, it is conceded that public indecency is not a lesser-included offense of indecent exposure because the two offenses have different elements. Further, the only element in dispute at trial was whether the exposure occurred under circumstances where Moss knew that it was likely to offend, annoy or alarm another person. Because the jury would not have been required to consider that element under a public indecency charge, the jury’s finding on public indecency could not have been a legal defense to the crime of indecent exposure. Therefore, even if Moss were guilty of public indecency, that guilt would have no bearing on his guilt or innocence of indecent exposure. Because the public indecency offense was not material to his defense, Moss was not entitled to an instruction on the existence of another related crime, which may have proscribed similar conduct. Consequently, the magistrate court did not abuse its discretion in denying Moss’s request for an instruction on public indecency.

[¶ 28.] Affirmed.

[¶ 29.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concurs.

[¶ 30.] SABERS and MEIERHENRY, Justices, dissent in part and concur in result in part.

SABERS, Justice

(dissenting in part and concurring in result in part).

[¶ 31.] I join Justice Meierhenry’s writing in all respects. Under the statutes, law enforcement officers who consent to witness acts of indecent exposure cannot be considered victims.

MEIERHENRY, Justice

(dissenting in part and concurring in result in part).

[¶ 32.] I dissent on the majority’s interpretation of the indecent exposure statute as well as its characterization of the detectives as victims; however, I concur in the result.

[¶ 33.] Moss contends that the State failed to prove he was guilty of the crime of indecent exposure because the evidence did not support an element of the crime, that is, that a victim be present and that the perpetrator “knows [his/her] conduct is likely to annoy, offend, or alarm” the present victim. Citing SDCL 22-24-1.2 (indecent exposure). Moss’s interpretation of the statute has merit; nevertheless, based on the evidence the conviction should be affirmed.

[¶ 34.] South Dakota’s statutory scheme contains three separate statutes that criminalize the exposure of one’s genitals-public indecency, indecent exposure and indecent exposure involving a child. When these statutes are considered in pari materia, it appears the legislature intended to require the presence of a victim for the crimes of indecent exposure and indecent exposure involving a child, but expressly excluded the necessity for the presence of a victim for public indecency. SDCL 22-24-1.1 (public indecency); SDCL 22-24-1.2 (indecent exposure), SDCL 22-24-1.3 (indecent exposure involving a child).

[¶ 35.] We have said that “[t]he object of the rule of [in] pari materia is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes [are] governed by one spirit and policy, and [are] intended to be consistent and harmonious in their several parts and provisions.” Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 SD 7, ¶ 15, 709 N.W.2d 824, 831 (citations omitted) (noting that the maxim of in pari materia requires the attempt to harmonize statutes). “Statutes must be construed in pari materia when ‘they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.’” Id. (quoting Goetz v. State, 2001 SD 138, ¶ 26, 636 N.W.2d 675, 683 (citing 2B Sutherland, Statutory Construction, § 51:03 (6th ed 2000)). See also State v. Plenty Horse, 2007 SD 114, ¶ 5, 741 N.W.2d 763, 765 (noting “In construing a statute, we attempt to ascertain its intent. The intent must be determined from the statute as a whole, as well as enactments relating to the same subject.”) (internal citation and quotes omitted); Seeba, 2006 SD 7, ¶ 12, 709 N.W.2d at 830) (noting that “[t]his Court gives ‘words their plain meaning and effect, and read[s] statutes as a whole, as well as enactments relating to the same subject ’ ”) (citations omitted) (emphasis added). Indeed, the public indecency and indecent exposure statutes prohibit the same types of obscene public exposure and were enacted and amended by the same Legislature, at the same time, and in the same bills. See 1998 SD Sess Laws ch 136, §§ 2 and 3; 2005 SD Sess Laws ch 120, §§ 298 and 299. See also Plenty Horse, 2007 SD 114, ¶ 6, 741 N.W.2d 763 n. 1, 741 N.W.2d at 765 n. 1 (recognizing that “[i]n 1998, the Legislature repealed a previous version of the statute and enacted two statutes in replacement”). Although the indecent exposure statute involving a child was not enacted until 2002, it shares common phraseology with the other two.

[¶ 36.] Each statute’s exclusivity becomes clear when the statutes are construed in pari materia. All three contain similar wording but contain different requirements for who must be present in the public place when the exposure occurs. The mens rea element of each statute exemplifies this distinction. The indecent exposure statute requires the intentional exposing of ones genitals, “under circumstances in which that person knows that person’s conduct is likely to annoy, offend or alarm another person.” SDCL 22-24-1.2 (emphasis added). Similarly, the indecent exposure involving a child requires the intentional exposing of ones genitals “under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some child, thirteen years of age or younger” SDCL 22-24-1.3 (emphasis added). Comparatively, the public indecency statute merely requires the perpetrator “know” his conduct — which is likely to offend, annoy or alarm — occurs in a public place where “another may be present.” SDCL 22-24-1.1 (emphasis added). It appears that the legislature intended that the presence of a victim be a factor in these crimes.

[¶37.] Prior to the legislature’s adoption of the current criminal exposure scheme, there was only one statute that defined criminal exposure and it required the presence of a victim. SDCL 22-24-1, repealed by 1998 SD Sess Laws ch 136, § 1. That statute was repealed and reenacted as two distinct crimes, public indecency and indecent exposure. 1998 SD Sess Laws ch 136, §§ 2 and 3. A third statute, indecent exposure involving a child, was later added to the criminal exposure scheme. 2002 SD Sess Laws ch 111, § 1. When the legislature split up the crimes, it expressly excluded the necessity for the presence of a victim for public indecency by adding the language: “where another may be present.” SDCL 22-24-I.1 (1998) (emphasis added). In 2005, the legislature amended the public indecency statute adding the exact language already used in both the indecent exposure statute and the indecent exposure involving a child statute: “under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm.” 2005 SD Sess Laws ch 120, § 128; see also 2005 SD Sess Laws ch 120, § 147 (providing that “[t]he provisions of this Act are effective on July 1, 2006”). Because the public indecency statute already contained language expressly abolishing the necessity for the presence of a victim, the only purpose for the amendment was to define the prohibited conduct. If we were to interpret the shared provision as an elimination of the requirement that a victim be present, as the Court prescribes above, the previous and current wording “where another may be present” becomes useless and superfluous. We must presume that the legislature does not exert the effort to amend statutes with redundant and meaningless language. See Brim v. South Dakota Bd. of Pardons & Paroles, 1997 SD 48, ¶ 43, 563 N.W.2d 812, 822 (citation omitted) (stating “This court will not construe a statute in a way that renders parts to be duplicative and surplusage”) (citing Sutherland Statutory Construction § 22.30 (5th ed 1993) (“[I]t is presumed that the provisions added by amendment were not included in the original act.”)).

[¶ 38.] Moreover, consideration of the indecent exposure statute involving a child further emphasizes the fact that the shared phrase defines the “conduct” rather than the probability that a victim be present. The initial version of that statute provided as follows: “If any person, eighteen years of age or older, exposes his or her genitals in a public place under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, and that conduct is viewed by and does, in fact, annoy, offend, or alarm any child, ... that person is guilty.” SDCL 22-24-1.3 (2005). Again, if we were to interpret the shared provision as an elimination of the requirement that a victim be present, as the majority prescribes above, the subsequent language requiring the presence of a child victim would be awkward and absolutely contrary to the Court’s interpretation of the shared phrase. See id.; see also Seeba, 2006 SD 7, ¶ 64, 709 N.W.2d at 841 (citation and internal quotes omitted) (“[w]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them harmonious and workable.”). The shared phrase defines the criminalized conduct; therefore, because the legislature chose not to use the language “where another may be present” when defining indecent exposure, the logical conclusion is that the presence of a victim remains a required element of the crime.

[¶ 39.] Finally, at the trial, Detective Duntman testified that from the location of the prohibited conduct he observed two occupied vehicles one that could be seen “plain as day” and another individual in a van who was “observing what was going on.” Based on this testimony, the jury could have rationally inferred that the present individuals, who occupied the vehicles, unwillingly witnessed the sex act without consenting to the same. Therefore, the necessity to demonstrate the presence of a victim was satisfied. Although the majority claims that the detectives met the statutory requirement of the presence of victims, the State did not make this claim at trial or to this Court. In fact, the State emphasized that the victims were the unwilling, unknowing public — not the police officers. The State made the following argument to the jury:

[T]here is no evidence that there is a sign outside of Elmwood Park that says warning, sex may be occurring, if you don’t want to see it, please, leave.... There were actually people in the parking lot. They’re trying to change that to well, there were people in the parking lot, but this is the sex park, and so if you go to this park, you’ve got to expect it, just like if you go to a strip club. Well, you know what, if you’re in law enforcement, maybe you have that information, if you’re a prosecutor, maybe you have that information, but if you’re a member of the community, again, no sign or indication that that’s what may be occurring.

I would affirm the verdict solely on the basis of the testimony regarding the other witnesses being present.

      . The repealed statute expressly required that the exposure take place "where there is present any person.” SDCL 22-24-1 (repealed, 1998 SD Sess Laws ch 136 § 1). The 1998 Legislature removed that language from SDCL 22-24-1.2.

      . The dissent reaches this result construing 1998 legislative intent from a 2005 amendment of a related statute. See infra ¶ 36.

      . " 'Community safety zone,’ [is] the area that lies within five hundred feet from the facilities and grounds of any school, public park, public playground, or public pool, including the facilities and grounds itselff.]” SDCL 22-24B-22(1). As a registered sex offender, Moss would be precluded from residing or loitering in these areas.

      . The public indecency statute, SDCL 22-24-1.1 (2005), provides, ''[a] person commits the crime of public indecency if the person, with an immoral purpose, exposes his or her anus or genitals in a public place where another may be present who will be offended or alarmed by the person's act.” Public indecency is a Class 2 misdemeanor, as opposed to indecent exposure, which is a Class 1 misdemeanor. See SDCL 22-24-1.1 and 22-24-1.2. Moss concedes that public indecency is not a lesser-included offense of indecent exposure and that he is not entitled to a public indecency instruction under our lesser-included jurisprudence. See State v. Giroux, 2004 SD 24, ¶ 5, 676 N.W.2d 139, 141.

      . During opening statements, Moss did attempt to argue other crimes, telling the jury that the trial might involve a discussion of ’ "another statute that classifies a different sort of crime about having sex in a public place, and you're going to have the question, put to you, well, did they do that....” At this point, an objection was raised and an off-the-record discussion occurred. Moss did not, however, preserve a record of that discussion and the court’s ruling. Therefore, we do not review any alleged error or prejudice arising in the opening statement. Cooper, 299 N.W.2d at 800.

      . This rule also renders Moss’s reliance on United States v. Brown, 33 F.3d 1002 (8thCir.1994) inapposite. Unlike Moss's case, Brown involved a situation where the defendant could not have been convicted of the charged and uncharged offenses.

      . SDCL 22-24-1.2 provides in pertinent part as follows:
      A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person's conduct is likely to annoy, offend, or alarm another person. A violation of this section is a Class 1 misdemeanor....

      . SDCL 22-24-1 (1997) provided:
      Any person who intentionally and with an immoral purpose exposes his or her genitalia in any place where there is present any person, other than the spouse of the expo-ser, to be offended or annoyed thereby, is guilty of a Class 1 misdemeanor. However, if such person has been previously convicted of a felony violation of § 22-22-1, 22-22-19.1, or 22-22-23, that person is guilty of a Class 6 felony. Any person convicted of a third or subsequent violation of this section is guilty of a Class 6 felony.

      . SDCL 22-24-1.1 (1998) (public indecency) provided:
      A person commits the crime of public indecency if the person, with an immoral purpose exposes his or her anus or genitals in a public place where another may be present who will be offended or alarmed by the person’s act. A violation of this section is a Class 2 misdemeanor.
      SDCL 22-24 — 1.2 (1998) (indecent exposure) provided:
      A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person’s conduct is likely to annoy, offend or alarm another person. A violation of this section is a Class 1 misdemeanor....

      . SDCL 22-24-1.3 (2002) (indecent exposure involving a child) provided:
      If any person, eighteen years of age or older, exposes his or her genitals in a public place under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, and that conduct is viewed by and does, in fact, annoy, offend, or alarm any child, thirteen years of age or younger, that person is guilty of the crime of aggravated indecent exposure. Aggravated indecent exposure is a Class 1 misdemeanor. A second or subsequent conviction for aggravated indecent exposure is a Class 6 felony.
      Interestingly, the penalty for actually exposing one’s genitals in a public place to a child who was “in fact” annoyed, offended or alarmed evoked the exact penalty as the charged indecent exposure statute. Compare SDCL 22-24-1.3 (2005) (indecent exposure involving a child) (penalty of Class 1 misdemeanor with second offense raised to Class 6 felony) with SDCL 22-24-1.2 (2005) (penalty of Class 1 misdemeanor with second offense raised to Class 6 felony). The current version of SDCL 22-24-1.3 (indecent exposure involving a child) provides as follows:
      If any person, eighteen years of age or older, with the intent to arouse or gratify the sexual desire of any person, exposes his or her genitals under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some child, thirteen years of age or younger, that person is guilty of the crime of indecent exposure involving a child. Indecent exposure involving a child is a Class 6 felony. A second or subsequent conviction for indecent exposure involving a child is a Class 5 felony.

      . SDCL 22-24-1.1 currently provides:
      A person commits the crime of public indecency if the person, under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, exposes his or her anus or genitals in a public place where another may be present who will be annoyed, offended, or alarmed by the person’s act. A violation of this section is a Class 2 misdemean- or.
      (Emphasis added).


author: ZINTER, Justice.

text:
    2008 SD 71
    Charles E. SISNEY, Plaintiff and Appellant, v. STATE of South Dakota and CBM Inc. and Douglas Weber-Director of Prison Operations for South Dakota (in his official and individual capacities), Defendants and Appellees.
    No. 24684.
    Supreme Court of South Dakota.
    Considered on Briefs March 26, 2008.
    Decided July 23, 2008.

      Charles E. Sisney, SD State Penitentiary, Sioux Falls, South Dakota, Pro se plaintiff and appellant.
    Jeffrey L. Bratkiewicz, Michele A. Mun-son of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint against the State of South Dakota, Douglas Weber, and CBM Inc. (Defendants). Sisney alleged that CBM breached a state contract under which CBM agreed to provide food services to the State at Department of Correction (DOC) facilities. Sisney sought damages for breach of contract as a third-party beneficiary. He also asserted that the alleged breach of contract supported causes of- action under 42 USC § 1981 and § 1985. The circuit court dismissed for failure to state claim, concluding that Sisney was not a third-party beneficiary who could enforce a public contract; that the State was immune from suit; and that Sisney failed to assert facts sufficient to proceed on his federal claims. We affirm, finding no third-party beneficiary status and an insufficient pleading to state a claim under § 1981 and § 1985.

I

[¶ 2.] Sisney pleaded that he is Jewish and follows a kosher diet as a part of his religion. Douglas Weber is the Director of Prison Operations for the State of South Dakota, and CBM is a corporation that provides food services to the State of South Dakota.

[¶ 3.] In July or August of 2002, the State entered into a contract with CBM to provide food services at DOC facilities, including prisons. Under the contract, the services were to be provided “to the State” in a manner that would meet the needs and concerns of the facilities’ residents, inmates and staff. The contract provided that “[t]he proposed menu ... [was to] have an average caloric base of 2700 to 2500 calories per day.” The contract further provided that “[flood substitutions [were to] be available to accommodate food avoidances due to religious beliefs/practices/observances[.]”

[¶ 4.] In April of 2007, CBM began serving different food at DOC facilities in which prisoners had requested a kosher diet. Sisney filed an administrative grievance through the DOC, claiming that the new kosher diet averaged 400 to 500 fewer calories than the minimum required under the State’s contract with CBM. He also alleged that the food did not meet the dictates of his religious beliefs. Sisney based his grievance on his study of the kosher diet. Weber responded that Sis-ney’s study was incomplete and underestimated the actual caloric content of the meals served. Weber informed Sisney that no action would be taken. Sisney grieved Weber’s response. Weber again rejected Sisney’s claims, indicating that no further action would be taken on his grievance.

[¶ 5.] Sisney then brought this suit premising his state and federal claims on allegations that Defendants had “conspired together to cause, permit, and allow a breach of contract to the detriment of [Sis-ney] because of his religious beliefs; and that this breach of contract resulted in financial gain to the Defendants.” Sisney claimed standing to sue for breach of contract “because the contract directly af-fectfed] him and his well-being.”

[¶ 6.] Defendants moved to dismiss for failure to state a claim upon which relief could be granted under SDCL 15-6-12(b)(5). Defendants argued that Sisney’s claims were barred by statutory immunity and a lack of standing to assert breach of a public contract between the State and CBM. Defendants also argued that the complaint did not contain sufficient factual allegations to support Sisney’s federal constitutional claim of discrimination and conspiracy under 42 USC § 1981 and § 1985.

[¶ 7.] The circuit court granted Defendants’ motion. The court concluded that “[e]ven assuming as true all of [Sisney’s] factual allegations contained in the Mom-plaint, it cannot be said that he has standing to assert a breach of contract claim for a contract which he was not a party, and was not a third-party beneficiary.” Regarding Sisney’s § 1981 claim, the court concluded that the “pleadings are bare as to any allegation of discrimination of the sort covered by § 1981.” Regarding Sis-ney’s § 1985 claim, the court concluded that even “taking into consideration the fact that Plaintiff is pro se, and relaxing the requirement properly pleading a [§ ] 1985 claim, it cannot be said that Plaintiff has asserted a [§ ] 1985 [conspiracy] claim upon which relief can be granted.” Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[¶ 8.] A motion to dismiss tests the legal sufficiency of the pleading, and therefore, we review the grant of a motion to dismiss de novo. Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 239. “While a complaint attacked by a Rule 12(b)(5) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Sisney v. Best, 2008 SD 70, ¶ 7, 754 N.W.2d 804 (quoting Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)) (internal citations omitted). The rules “contemplate[ ][a] statement of circumstances, occurrences, and events in support of the claim presented.” Best, ¶ 7, 754 N.W.2d at 808 (quoting Bell Atlantic, — U.S. at -, 127 S.Ct. at 1965 n. 3) (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1202, at 94). Ultimately, the complaint must allege facts, which, when taken as true, raise more than a speculative right to relief. Bell Atlantic, — U.S. at -, 127 S.Ct. at 1965. Furthermore, “[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)( [5]) is appropriate.” Benton v. Merrill Lynch & Co. Inc., 524 F.3d 866, 870 (8thCir.2008).

III

[¶ 9.] Sisney asserts that he has standing to sue for breach of the State’s contract with CBM, arguing that he is a third-party beneficiary of that contract. This assertion underlies both the state and federal causes of action.

[¶10.] SDCL 53-2-6 governs the right to enforce a contract as a third-party beneficiary. The statute provides, “[a] contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” SDCL 53-2-6 (emphasis added). This does not, however, entitle every person who received some benefit from the contract to enforce it. As this Court stated in Thompson Yards v. Van Nice, 59 S.D. 306, 308, 239 N.W. 753, 755 (1931):

The [third-party beneficiary] statute is not applicable to every contract made by one person with another for the performance of which a third person will derive a benefit; the intent to make the contract inure to the benefit of a third party must be clearly manifested. In the language of the statute, the contract must be on “made expressly for the benefit of a third person.”

(Citations omitted.) See also Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, ¶ 13, 632 N.W.2d 856, 858; Kary v. Kary, 318 N.W.2d 334, 336 (S.D.1982); Fry v. Ausman, 29 S.D. 30, 135 N.W. 708, 710 (1912). Thus, the rule requires that at the time the contract was executed, it was the contracting parties’ intent to expressly benefit the third party. And, even then, not all beneficiaries qualify: incidental beneficiaries are not entitled to third-party beneficiary status. North Dakota, in construing language similar to SDCL 53-2-6, explained that even “the mention of one’s name in an agreement does not give rise to a right to sue for enforcement of the agreement where that person is only incidentally benefited.” First Fed. Sav. & Loan Ass’n of Bismarck v. Compass Inv. Inc., 342 N.W.2d 214, 218 (N.D.1983). The party claiming third-party beneficiary status must show “that the contract was entered into by the parties directly and primarily for his benefit.” Mercado v. Mitchel, 83 Wis.2d 17, 28, 264 N.W.2d 532, 538 (1978). “The benefit must be more than merely incidental to the agreement.” Id.

[¶ 11.] “Government contracts ... pose unique difficulties in the area of third-party beneficiary rights because, to some extent, every member of the public is directly or indirectly intended to benefit from such a contract.” Clifton v. Suburban Cable TV Co. Inc., 434 Pa.Super. 139, 144, 642 A.2d 512, 515 (1994). Therefore, as a general rule, a private party who contracts with the public government entity does not open itself to liability at the hands of the public. Restatement (Second) of Contracts § 302 (1981). A private third-party right of enforcement is not properly inferred because of the potential burden that expanded liability would impose. See id. The right of enforcement in public contracts can only arise from the plain and clear language of the contract. See id. Consequently, when a public contract is involved, private citizens are presumed not to be third-party beneficiaries. Drummond v. Univ. of Pa., 651 A.2d 572, 578-79 (Pa.Cmwlth.1994). The Pennsylvania court observed that “[t]here must be language evincing an intent that the party contracting with the government will be liable to third parties in the event of nonperformance.” Id. at 579.

[¶ 12.] Under these rules, it is generally held that inmates lack standing to enforce public contracts. Clifton, 642 A.2d at 514. See also Gay v. Ga. Dep’t of Corrections, 270 Ga.App. 17, 606 S.E.2d 53, 57-59 (2004) (stating, “the mere fact that the [third party] would benefit from performance of the agreement is not alone sufficient” to render that party a third-party beneficiary). The rationale underlying these decisions is that public contracts are intended to benefit everyone, and therefore, the inmate’s benefit is only incidental to the contract.

[¶ 13.] In this case, the contract was a public contract between the State of South Dakota and CBM, and the contract did not expressly indicate that it was intended for Sisney’s direct benefit or enforcement. On the contrary, the contract reflects that it was made for the express benefit of the State, and the collective benefit that inmates may have received was only incidental to that of the State. Sisney concedes as much, indicating that his relationship with the contract involved a mere “benevolent nexus between the promisee [State] and the beneficiary [Sisney].” Brief of Appellant at 12.

[¶ 14.] Nevertheless, Sisney argues that because the contract provided that “[t]he contractor shall describe the complaint resolution process in place for addressing complaints,” Sisney possessed a right of enforcement. Sisney, however, conceded that the complaint resolution mechanism is a general administrative remedy: See SDDOC Policy I.3.E.2. Because this remedy is a general institutional remedy provided to all inmates to address numerous confinement complaints, and because that remedy is provided independent of the State’s food service contract with CBM, the contract’s reference to that policy does not confer contractual third-party beneficiary status on Sisney to enforce the contract.

[¶ 15.] Because Sisney did not have standing to sue under this public contract, and because all of Sisney’s claims are dependent upon his right to sue for breach of the contract, we need not discuss the issue of immunity. For the same reason, we need not extensively discuss Sis-ney’s federal claims.

IV

[¶ 16.] Sisney argues that the circuit court abused its discretion by failing to give him an opportunity to amend his complaint in order to cure any pleading deficiencies. A circuit court’s decision regarding amendment of the pleadings “will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice!.]” In re T.A., 2003 SD 56, ¶ 38, 663 N.W.2d 225, 237. In this case, Sisney only generally raised the issue of amendment in a brief resisting dismissal. He did not file a motion, nor did he explain what new, specific factual allegations would have overcome the defects requiring dismissal. For these reasons, the circuit court did not abuse its discretion in declining to make, schedule, and grant (essentially sua sponte) a motion allowing amendment of the complaint.

[¶ 17.] We affirm the circuit court’s dismissal of Sisney’s complaint.

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

      . Sisney’s claims were based upon breach of contract. His pleading alleged that the change in food was a ...:
      Count 1: ... breach of contract between the State of South Dakota and CBM Inc. in violation of South Dakota Law(s) and Statute(s).
      Count 2: ... conspiracy by the Defendants to deprive the Plaintiff of the benefits of said contract by breaching and/or allowing said breach of contract in violation of the laws of the United States of America and the State of South Dakota.

      . Sisney argues that Clifton and Gay are inapplicable because the contracts in those cases contained clauses that specifically provided only the State could enforce the contract. This distinction is irrelevant, however, because both cases were decided on the basis that, similar to Sisney’s case, there was no indication or language in the contracts that clearly expressed the signatory parties' intent to benefit the specific inmates at issue: they were only incidentally benefited, and therefore they lacked standing. Clifton, 642 A.2d at 512; Gay, 606 S.E.2d at 53.

      . We note, however, that the purpose of 42 USC § 1981 is to prohibit discrimination in the making or enforcement of contracts on the basis of race. Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). Discrimination based upon sex, age, or religion does not provide a cause of action under § 1981. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Therefore, in order for Sisney to state a claim upon § 1981, he must have pleaded that he was deprived of a right that, under similar circumstances, would have been accorded a person of a different race. Schetter v. Heim, 300 F.Supp. 1070, 1073 (E.D.Wis.1969). Sisney did not allege that he was denied the benefit of the contract because of his race. Rather, he alleged that Defendants “allow[ed] the breach of contract to the detriment of Plaintiff because of his religious beliefs[.]” Complaint ¶ 20.
      Sisney's § 1985(3) claim also fails. "Civil rights pleadings are construed liberally[, but] they must not be conclusory and must set forth facts which state a claim as a matter of law.” Davis v. Hall, 992 F.2d 151, 152 (8th Cir.1993). The “allegations of a conspiracy must be pleaded with sufficient specificity and factual support to suggest a ‘meeting of the minds.'” Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.1985) (citation omitted). Therefore, Sisney was required to "at least allege that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding, and provide some facts suggesting such a ‘meeting of the minds.’" Id. (citation omitted). See also Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir.1988) (providing that a conspiracy claim requires allegations of specific facts showing "meeting of minds” among alleged conspirators).
      In this case, Sisney only alleged that Defendants "conspired to cause, permit, and allow a breach of contract to the detriment of the Plaintiff because of his religious beliefs; and that this breach of contract resulted in financial gain for Defendants.” Complaint, ¶ 20. This is the type of allegation that the Supreme Court specifically prohibited in Bell Atlantic, stating that the federal counterpart to Rule 12(b)(5) "contemplate[s] the statement of cir-aumstances, occurrences, and events in support of the claim presented.” - U.S. at -, 127 S.Ct. at 1965 n. 3 (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1202, at 94). Here, Sisney did no more than use the word "conspire,” while failing to allege one fact suggesting a meeting of the minds, when an agreement was reached, or who was involved. Therefore, his complaint was without "sufficient specificity and factual support.” Deck, 771 F.2d at 1170.