author: MEIERHENRY, Justice.

text:
    2006 SD 11
    STATE of South Dakota, Plaintiff and Appellee, v. Gary Dean WILLIAMS, Defendant and Appellant.
    No. 23566.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided Feb. 1, 2006.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, for plaintiff and appellee.
    John Hinrichs, Office of the Minnehaha, County Public Defender, Sioux Falls, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Defendant Gary Dean Williams (Williams) appeals from his conviction for three counts of grand theft by deception. Williams asserts that evidence was improperly admitted at his trial. He also asserts that his thirty-year sentence, with nine years suspended, constitutes cruel and unusual punishment. We affirm.

FACTS

[¶ 2.] The three counts of which Williams was convicted involved three different victims: Michael Crago (Crago), Michael and Cheryl Brimmer (the Brim-mers), and Gerald Heck (Heck). Crago and Williams, both hearing impaired, first became acquainted while attending the South Dakota School for the Deaf. In early 2002, the two met by chance at a gas station. Prior to their encounter at the gas station, the two had not seen each other for a long time. Williams, who worked as a carpenter, convinced Crago to pay him $2,050 to repair Crago’s roof. Williams also told Crago that he had $150,000 in the bank and wanted to invest in real estate. Crago agreed to join Williams in the real estate venture, and thereafter wrote Williams a series of personal checks over a period of time. Williams represented to Crago that, he used the money to invest in twelve separate properties. By June 2002, Crago had paid Williams close to $75,000. Although Crago asked Williams for proof of the transactions, Williams cleverly kept stalling with promises of providing it later, all the while taking advantage of Crago’s trust and friendship. Crago eventually ran out of cash and began providing additional funds to Williams by borrowing from his credit card. Williams’ scheme consisted of a litany of excuses and lies.

[¶ 3.] In May 2002, Crago introduced Williams to the Brimmers, who were also members of the deaf community. Williams represented himself as a licensed real estate agent who could sell the Brim-mers’ home. He never produced his license as the Brimmers requested. Nevertheless, the Brimmers agreed to Williams’ services. At Williams’ request, they also wrote him several personal checks that Williams said he would invest at Great Western Bank. Williams never provided proof to the Brimmers of what he did with the money. Again, his alleged business relationship with the Brimmers was fraught with misrepresentations and conversion of funds for his personal use.

[¶ 4.] During the same time, Williams met Heck, who was not a member of the deaf community. Heck told Williams that he was an independent investor. Williams lied to Heck by claiming to have purchased the Brimmers’ home, and he asked Heck to invest $5,000 in the improvement of the home so that Williams could sell it for a profit. Heck agreed and paid Williams accordingly. Heck drafted a contract to reflect the transaction. Upon the sale of the Brimmers’ home, Williams claimed that Brimmers took all the proceeds with no valid explanation of why Heck was not reimbursed. Subsequently, Heck also gave Williams additional money, none of which was returned.

[¶ 5.] Williams eventually reimbursed Crago for approximately $10,000. Crago, however, never received proof of any other interest in the items in which Williams claimed to have invested. Further, the Brimmers never received statements for their investments at Great Western Bank, and Williams never reimbursed them for the money. The Brimmers’ home eventually was sold, but upon sale they discovered that items such as appliances had been removed from the home without the Brim-mers’ knowledge. Because Williams never owned the Brimmers’ home, Heck received no reimbursement from Williams upon the sale of the house.

[¶ 6.] In early 2004, Williams was indicted on three counts of Grand Theft by Deception, a crime punishable by up to ten years in the penitentiary and/or a $10,000 fine. The indictment alleged that Williams intended to deprive each of his victims— Crago, the Brimmers, and Heck — of property exceeding $500 in value by creating the false impression that he was using their property for investments. Subsequent to the indictment, the State and Williams reached a plea agreement that required Williams to plead guilty to one count of the indictment. In exchange, the State agreed to dismiss the other two counts and recommend a suspended execution of a penitentiary sentence with six months in the county jail and restitution of $169,948 for all three counts. The plea agreement was rejected twice by the circuit court. It later indicated it would accept the plea agreement only if Williams pleaded guilty to two counts of the indictment so that a fifteen-year suspended sentence could be imposed. Williams chose not to plead guilty to two of the counts and withdrew his guilty plea. Subsequently, a jury found Williams guilty of all three counts of grand theft by deception. Judge Lieberman ultimately sentenced Williams to 30 years in the penitentiary, with nine years suspended. Williams appeals and raises the following issues:

ISSUES
1. Whether the trial court erred by admitting testimony concerning the contents of public records.
2. Whether Williams’ sentence is cruel and unusual in violation of the Eighth Amendment to the United States Constitution.

DECISION

Admissibility of Testimony Concerning the Contents of Public Records.

[¶ 7.] At trial, Gayland Schmidt, a detective with the Sioux Falls Police Department, testified about his investigation of the allegations against Williams. Specifically, Schmidt testified that he received a list of the properties in which Williams allegedly invested. The jury then heard the following exchange between the prosecutor and Schmidt:

Q: With that information did you make any attempt to discover if there was any corroboration for representations made to [Crago] that those properties had been purchased by Mr. Williams and [Crago]?
A: Yes, I did.
Q: And how did you go about seeing if there was any corroboration to the fact?
A: I went to the Minnehaha County Register of Deeds Office, which is public records and they allowed me to look up on their computer base the ownership of those properties.
Q: Did you know how to use that system when you got there?
A: They taught me how to use that.
Q: Was it complicated?
A: No.
Q: Did you then go through each of those properties individually to determine if there was any corroboration for [Crago]’s belief that they had been transferred to Mr. Williams and himself?
A: I looked up each property.
Q: And did you find any corroboration of any of those properties being transferred to Mr. Williams or [the victim]?
A: No, I could not.

Williams objected to the admission of this testimony, but his objection was overruled. He now appeals that evidentiary ruling. Williams argues that Schmidt’s testimony regarding the contents of the deed records constituted inadmissible hearsay. Williams admits that the contents of public records are admissible under the public records exception to the hearsay exclusion rule, SDCL 19-16-12 (Rule 803(8)), which allows the admission of public records kept by public offices or agencies under a duty to report. Williams argues, however, that the best evidence rule, SDCL 19-18-2 (Rule 1002), requires the production of certified copies of those records. Williams claims that without that evidence the State failed to establish that he defrauded Cra-go.

[¶ 8.] We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544. Even if error -is found, however, “it must be prejudicial in nature before this Court will overturn the trial court’s evidentiary ruling.” Id. (citation omitted). Under the rules of evidence, hearsay is an out-of-court assertion, either oral or written, which is “offered in evidence to prove the truth of the matter asserted.” SDCL 19-16-1 (Rule 801(a) to (c)). Hearsay is generally inadmissible. SDCL 19-16-4 (Rule 802).

[¶ 9.] In this case, the evidence concerning the public records was offered to show that Williams never owned the properties he purported to own when soliciting investments from the victims. While not specifically cited by the trial court, Rule 803(10) explicitly allows the type of testimony at issue here. That rule, known as the negative records rule, provides:

To prove the absence of a record ... or the nonoccurrence or nonexistence of a matter of which a record ... was regularly made and preserved by a public office or agency, evidence in the form of ... testimony, that diligent search failed to disclose the record ... is not excluded by [SDCL] 19-16-4, even though the declarant is available as a witness.

SDCL 19-16-14 (Rule 803(10)) (emphasis added). Under the federal counterpart to Rule 803(10), the Eighth Circuit Court of Appeals has admitted similar evidence in a criminal case. United States v. Hale, 978 F.2d 1016, 1020-21 (8thCir.l992). The defendant in Hale was charged with possession of unregistered firearms. Id. at 1017. To prove the lack of registration, the government introduced two affidavits by specialists from the Bureau of Alcohol, Tobacco and Firearms, which stated that after a diligent search of firearms registration records, no record was located that showed any application by the defendant to register his weapons. Id. at 1020. On appeal, the Eighth Circuit held that the evidence was admissible hearsay under the federal “negative records” rule and that such evidence did not violate the constitutional right to confrontation. Id. at 1021.

[¶ 10.] Here, confrontation was not an issue because Schmidt testified at trial and was subject to cross-examination. Consequently, Rule 803(10) renders Schmidt’s testimony admissible hearsay. Pursuant to the rule, the State was able to offer proof through Schmidt’s testimony that Williams had no ownership in the investment properties as he had claimed, that is, proof of the absence of a record of ownership. Even though SDCL 19-16-14 (Rule 803(10)) was not specifically cited, the trial court correctly concluded that the testimony was not inadmissible hearsay.

[¶ 11.] Williams’ objection based on the best evidence rule, SDCL 19-18-2 (Rule 1002), also fails because the testimony was not offered to prove the contents of a record. As we have stated, the best evidence rule applies “only when one seeks to prove the contents of documents or recordings. [It] is inapplicable when content is not at issue.” State v. Downing, 2002 SD 148, ¶ 12, 654 N.W.2d 793, 797 (citations and quotation marks omitted). Therefore, the trial court did not abuse its discretion in allowing Schmidt’s testimony.

Validity of Williams’ Sentence under the Eighth Amendment of the United States Constitution.

[¶ 12.] Williams alleges that his sentence is grossly disproportionate to the conduct for which he was convicted and therefore constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Eighth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. When assessing a proportionality challenge, we must first determine whether the sentence appears grossly disproportionate. State v. Guthmiller, 2003 SD 83, ¶ 43, 667 N.W.2d 295, 309. Our standard of review for such challenges is well established:

“[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” [State v. Pugh, 2002 SD 16, 19, 640 N.W.2d 79, 85] (citing State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580). If the sentence does not appear grossly disproportionate, no further review is necessary. State v. Hinger, 1999 SD 91, ¶ 16, 600 N.W.2d 542, 547. If the sen-fence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. Id. We also consider “the gravity of the offense and the harshness of the penalty;” Solern v. Helm, 463 U.S. 277, 292 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983); and other relevant factors, such as the effect this type of offense has on society. Hinger, 1999 SD 91, 16, 600 N.W.2d at 547.

Id.

[¶ 13.] Applying this standard, we must first consider Williams’ conduct. Williams was convicted on three counts of grand theft by deception, each of which is a Class 4 felony punishable by up to ten years in the state penitentiary and a $10,000 fine. Two of Williams’ charges were based on his victimization of fellow members of the deaf community. Williams, in part, used their common disability to gain their confidence and trust and to entice them into giving him their cash and property. He continually denied the requests of all the victims for account-ings, and he assured them that proof of their investments would be forthcoming. Even on the day of his sentencing, Williams failed to account for the victims’ property. As a result, Crago lost approximately $69,000, the Brimmers lost approximately $107,000, and Heck lost approximately $14,000.

[¶ 14.] Although Williams had no similar prior offenses, his conduct here involved three offenses and three victims and was part of a pattern of deception. There was no evidence that Williams ever intended to invest the property or repay the victims. Further, Williams never disclosed what he did with the property, nor did he accept responsibility for his conduct.

[¶ 15.] The trial court imposed consecutive sentences of ten years with three years suspended for each of the three felony convictions. Additionally, the court required Williams to pay restitution as part of the conditions of parole. The sentence is within the maximum sentence of ten years in the state penitentiary set by the Legislature. Additionally, depending upon his behavior in prison and on parole, he could actually serve less than the ten years because the trial court suspended three years on each sentence. Thus, based upon our standard of review, the nature of the conduct involved in the crimes, and the appropriate deference given the Legislature and the sentencing court, we cannot say that the sentence appears grossly disproportionate. Cf., State v. Pasek, 2004 SD 132, ¶ 37, 691 N.W.2d 301, 313 (affirming a life sentence for first-degree robbery under the habitual offender enhancement); State v. Bonner, 1998 SD 30, ¶ 23, 577 N.W.2d 575, 581-82 (finding that a maximum sentence of fifteen years for the second degree burglary conviction of a developmentally disabled defendant was disproportionate where his accomplices received probation); State v. O’Connor, 408 N.W.2d 754, 756 (S.D.1987) (finding proportional three concurrent fifty-year sentences and a fine of $25,000 for convictions for conspiracy to commit grand theft, conspiracy to commit third degree burglary, and grand theft where the offenses involved approximately $250,000). Since the first prong of the proportionality review has not been met, we need not proceed any further in our analysis.

[¶ 16.] Affirmed.

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

      . As noted in Hale, Federal Rule of Evidence 803(10) provides an exception to the hearsay rule " '[t]o prove the absence of a record ... or the nonoccurrence or nonexistence of a matter of which a record ... was regularly made and preserved by a public office or agency, evidence in the form of ... testimony, that diligent search failed to disclose the record.' " 978 F.2d at 1020-21 (quoting Fed. R.Evid. 803(10)).

      . Several of our decisions suggest that sentence challenges are reviewed under the abuse of discretion standard. See, e.g., State v. McKinney, 2005 SD 73, ¶ 10, 699 N.W.2d 471, 476 (McKinney I) ("We ultimately review a sentence within statutory limits under an abuse of discretion standard."); State v. Goodroad, 1997 SD 46, ¶ 40, 563 N.W.2d 126, 135 ("A sentence within the statutory limits is reviewed under an abuse of discretion standard."); State v. Anderson, 1996 SD 46, ¶ 30, 546 N.W.2d 395, 402 (" 'Where the court is asked to review a punishment within the statutory limits, the question is whether the trial court abused its discretion’ "); State v. Kaiser, 526 N.W.2d 722, 726 (S.D.1995) (same); State v. Reed, 451 N.W.2d 409, 411 (S.D.1990) (same). That standard of review apparently originated in State v. Phipps, which states that "[w]here a court is asked to review a punishment within [statutory] limits, the question in reality is whether the trial judge abused his discretion.” 318 N.W.2d 128, 132 (S.D.1982).
      The cases that Phipps cites for that standard Of review all address Eighth Amendment challenges; they do not, however, explicitly use the abuse of discretion standard of review. See State v. Antelope, 304 N.W.2d 115 (S.D.1981); State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Helm, 287 N.W.2d 497 (S.D.1980). Phipps and the cases it cites all review the sentences under the "shock the conscience” test. Phipps, 318 N.W.2d at 132-133; Antelope, 304 N.W.2d at 117; Curtis, 298 N.W.2d at 811; Helm, 287 N.W.2d at 498-99. Under that test, "a sentence within the statutory limits is not reviewable on appeal, even if it is regarded as excessive," but the sentence "may be constitutionally offensive if its duration is so excessive as to 'shock the conscience.’ ” Helm, 287 N.W.2d at 498 (citations omitted). That test, however, is no longer applicable to Eighth Amendment challenges. State v. Bonner, 1998 SD 30, ¶ 13, 577 N.W.2d 575, 579. Our recent cases indicate that we regularly consider the constitutionality of sentences even though they are within statutory limits. See, e.g., State v. McKinney, 2005 SD 74, ¶ 28, 699 N.W.2d 460, 468 (McKinney II); State v. Pasek, 2004 SD 132, ¶ 35, 691 N.W.2d 301, 312; State v. Smiley, 2004 SD 119, ¶ 4, 689 N.W.2d 427, 429.
      We note this changing analysis to Eighth Amendment proportionality challenges in order to confirm the proper standard of review. As we recently explained, "[initially we review the sentencing court's decision under the abuse of discretion standard,” but "for assertions of constitutional error the standard of review under both our federal and state constitutions is the gross disproportionality test.” McKinney II, 2005 SD 74, ¶ 26, 699 N.W.2d at 468 (citations and quotation marks omitted). Thus, the abuse of discretion standard does not apply to Eighth Amendment challenges; rather, the standard set forth in Bonner, and repeated in Guthmiller, guides our review. Cf. State v. Krahwinkel, 2002 SD 160, ¶ 13, 656 N.W.2d 451, 458 ("when an asserted error implicates an infringement of a constitutional right, we employ a de novo standard of review”).


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 13
    STATE of South Dakota, Plaintiff and Appellee, v. Deborah J. MOTZKO, Defendant and Appellant.
    No. 23565.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Feb. 8, 2006.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    David L. Claggett, Spearfish, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Deborah Motzko was convicted of driving under the influence of an alcoholic beverage. She appeals contending that: 1) the evidence was insufficient to support the conviction, 2) the trial court should have considered jurors’ affidavits in ruling on a motion for new trial, and 3) the trial court erred in refusing her jury instruction suggesting that in South Dakota it was not necessarily illegal to drink and drive. We affirm.

Facts and Procedural History

[¶2.] On August 5, 2004, Motzko was driving a motorcycle from Sturgis to Spearfish, South Dakota. As she exited an interstate highway at approximately 9:35 p.m., a pickup truck struck the rear of her motorcycle. The contact caused the motorcycle to slide approximately ten feet, resulting in an injury to Motzko’s ankle. Two Spearfish police officers and two highway patrol troopers arrived on the scene to investigate the accident. Shortly thereafter, an ambulance transported Motzko to a hospital in Spearfish.

[¶ 3.] As the ambulance left the scene, Trooper Mark Chamberlain asked Trooper Ed Fox to go to the hospital and gather information about the accident. At the hospital, Fox waited for Motzko to complete her X-rays and then conducted an interview. While talking with Motzko, Fox noticed what he described as “the odor of an alcoholic beverage coming from — what seemed to be coming from her person.” Fox asked Motzko whether she had been drinking. Motzko admitted that she had been drinking, stating that she had one glass of wine about two or three hours before the accident. Motzko was subsequently arrested, and at 11:20 p.m., she consented to a blood test. After Motz-ko was released from the hospital, Fox transported her to the county jail.

[¶ 4.] Upon arriving at the jail, Fox placed the blood sample in a lock box. The blood sample was stored in the lock box until it was shipped to Dr. Robert Looyenga for testing. The blood was tested twice. The first test indicated that Motzko’s blood alcohol level was 0.114 percent. The second test of the same sample indicated a blood alcohol level of 0.118 percent.

[¶ 5.] A Lawrence County grand jury indicted Motzko on alternative counts of driving while under the influence of an alcoholic beverage. Count I alleged that she drove while there was “0.08 percent or more by weight of alcohol in her blood” in violation of SDCL 32-23-1(1). Alternatively, Count IA alleged that she drove “while under the influence of an alcoholic beverage” in violation of SDCL 32-23-1(2). The trial court denied Motzko’s motions for judgments of acquittal at the close of both the State’s and Motzko’s cases. The jury acquitted Motzko of Count I (driving with a 0.08 percent or higher blood alcohol level) but found her guilty of Count IA (driving under the influence). The trial court subsequently denied Motzko’s renewed motion for judgment of acquittal and motion for new trial.

Analysis and Decision

Sufficiency of the Evidence

[¶ 6.] Motzko’s motions for judgments of acquittal and new trial alleged that the evidence was insufficient to support the conviction. In reviewing the sufficiency of the evidence, the issue 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.” State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305. “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.’ ” Id. We do “not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.” State v. McKinney, 2005 SD 73, ¶ 26, 699 N.W.2d 471, 480 (citing Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305 (citation omitted)). “Thus, ‘[a] guilty verdict mil not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.’” Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305 (quoting State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted)).

[¶ 7.] Motzko argues the evidence was insufficient because Troopers Chamberlain and Fox observed little, if anything, indicating that she was under the influence. In fact, the only observations of significance were Fox’s detection of the odor of alcohol coming from her person and Motzko’s admission of having consumed wine earlier that evening. Based on the troopers’ minimal observations as well as the acquittal on the 0.08 percent blood alcohol charge, Motzko contends that the evidence was insufficient to prove she was under the influence of an alcoholic beverage at the time of the accident. However, we must examine Motzko’s contentions considering both the proof necessary to sustain an “under the influence” conviction under SDCL 32-23-1(2) and the evidential effect of blood alcohol levels of less than 0.08 percent.

[¶ 8.] SDCL 32-23-1(2) provides: “No person may drive or be in actual physical control of any vehicle while: ... [ujnder the influence of an alcoholic beverage ....” In determining whether a person was “under the influence,” this Court has often stated:

that this phrase covers “not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in alcoholic liquor and which tends to deprive [the defendant] of that clearness of intellect and control of himself which [the defendant] would otherwise possess.

State v. Hullinger, 2002 SD 83, ¶ 14, 649 N.W.2d 253, 259 (quoting State v. Masteller, 86 S.D. 514, 517, 198 N.W.2d 503, 505 (1972) (emphasis added)). Therefore, it is not required that a defendant display the easily observable signs of impairment such as staggering or slurred speech. Rather, any abnormal mental or physical condition that deprives an individual of the clearness of intellect and self control that they would otherwise possess will suffice.

[¶ 9.] In this case, there is record evidence indicating that Motzko had an abnormal mental and physical condition depriving her of the clearness of intellect and self control she normally possessed. Trooper Fox testified that he observed the odor of alcohol, an abnormal physical condition, coming from Motzko’s person. In fact, Motzko admitted that she had consumed the wine one to two hours before the accident. Dr. Looyenga then explained the effect of this alcohol on Motz-ko’s mental and physical conditions at various blood alcohol levels. He testified that an individual’s observable motor skills, such as staggering and slurred speech, often do not become impaired until the blood alcohol level reaches the 0.15 to 0.18 percent range, or even higher depending on the individual’s tolerance. However, Dr. Looyenga testified that an individual’s cognitive abilities, which include less observable conditions such as reaction time, peripheral vision, divided attention, and binocular vision, become impaired around the 0.06 and 0.07 percent level. Thus, while the well known and easily recognizable signs of intoxication (motor skills) may not have been observable, under the evidence presented, the jury could have found that Motzko’s intellect and self control (cognitive abilities) were impaired at a blood alcohol level of less than 0.08 percent.

[¶ 10.] We acknowledge that the jury may not have believed that Motzko’s blood alcohol level was 0.08 percent or higher at the times Motzko was driving. However, the jury was properly instructed that if her blood alcohol level was between 0.05 and 0.08 percent, there was no presumption of being under the influence, but the blood alcohol level may still be considered in determining the defendant’s guilt or innocence. See SDCL 32-23-7 (containing the presumptions that arise from a chemical analysis). Therefore, the fact that Motzko had less than a 0.08 percent blood alcohol level was irrelevant in this prosecution under SDCL 32-23-1(2). See State v. Huettl, 379 N.W.2d 298, 302 (S.D.1985) (indicating that the statutory presumptions relating to being “under the influence” are irrelevant in a prosecution under SDCL 32-23-1(2)).

[¶ 11.] More importantly, it must be remembered that Dr. Looyenga was questioned on other possible theories regarding Motzko’s alcohol consumption, correlating blood alcohol levels, and impairment at the time she was driving her motorcycle. All the hypotheticals assumed a 120 pound female had consumed alcohol, was involved in an accident at 9:30 p.m., and had blood drawn at 11:20 p.m. When asked what the blood alcohol level of the female would have been if she had consumed a five ounce glass of wine three hours before the blood draw, Dr. Looyenga testified that her blood alcohol level would have reached a peak of 0.044 percent, it would have dropped to roughly 0.02 percent two hours prior to the draw (the time of the accident), and it would have been zero at the time of the draw. Thus, Motzko’s theory of what occurred was scientifically impossible if the jury believed that any level of alcohol was present in her blood. Additionally, a second hypothetical was then presented in which the female would have consumed an eight ounce glass of wine between 8:30 and 8:45 p.m. Dr. Looyenga testified that under this scenario, the blood alcohol level would have been 0.072 percent at its peak and 0.06 percent at the time of the accident. Considering the cognitive impairment that exists at the 0.06 to 0.072 percent range, this theory supports Motzko’s conviction.

[¶ 12.] As previously stated, the issue before us is whether there is record evidence, which if believed by the jury, would be sufficient to sustain a verdict of guilty beyond a reasonable doubt. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d at 305. In deciding that issue, we do not retry the case and act as the jury in determining guilt beyond a reasonable doubt. Rather, because we are an appellate court, we must reach our conclusion through the application of our well established standard of review, which requires us to determine if there is a rational theory that supports the jury’s verdict. Id.

[¶ 13.] Ultimately, the evidence presented, including the favorable inferences drawn therefrom, provides a rational theory that supports the jury’s verdict. Trooper Fox’s detection of the odor of an alcohol beverage, Motzko’s admission of wine consumption, and Dr. Looyenga’s testimony presented a theory that Motzko drank a sufficient amount of wine to give her a 0.06 percent or higher blood alcohol level at the times she admitted she was driving. Furthermore, considering Dr. Looyenga’s explanation of the effects of alcohol on Motz-ko’s cognitive abilities at the 0.06 percent or higher blood alcohol levels, the jury could have concluded that Motzko was impaired at the times she was driving her motorcycle. Therefore, there is sufficient evidence to sustain the jury’s verdict.

Jury Affidavits

[¶ 14.] Motzko’s motion for new trial asserted that the jury misunderstood the law in arriving at its verdict. A jury’s verdict may be set aside “in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law....” Atkins v. Stratmeyer, 1999 SD 131, ¶ 7, 600 N.W.2d 891, 894 (quoting LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 13, 544 N.W.2d 523, 526-27 (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983) (citing Simons v. Kidd, 73 S.D. 306, 42 N.W.2d 307, 309 (1950)))).

[¶ 15.] Motzko argues that a new trial should have been granted because of the minimal, observable evidence of impairment and the affidavits of seven jurors indicating that they were under a “mistaken belief’ that Count IA (driving under the influence) required them to find Motzko guilty if she had any amount of alcohol in her system. However, SDCL 19-14-7 (Rule 606(b)) prohibits consideration of juror affidavits explaining any matter or statement occurring during deliberations or anything that affected the juror’s mind or emotions. The statute only allows juror evidence regarding extraneous prejudicial information or outside influences that are improperly brought to the jury’s attention.

[¶ 16.] We have provided examples of the difference between admissible extraneous and inadmissible intrinsic information.

Intrinsic information, about which testimony is prohibited, involves “(1) the effect such extraneous information had upon their minds; (2) statement or discussions which took place during deliberations; or (3) evidence of ‘intimidation or harassment of one juror by another, or other intra-jury influences.’ ” Extrinsic information may include “media publicity, conversations between jurors and non-jurors, and evidence not admitted by the court.”

State v. Boyles, 1997 SD 99, ¶ 12, 567 N.W.2d 856, 859 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995)) (citations omitted). Additionally, once the jury has been discharged, a juror will not be allowed to testify in order “to impeach a jury verdict on grounds which inhere in the verdict itself.” Id. ¶ 13. A jury’s understanding of the “instructions and charge is a matter that inheres in the verdict.” Id.

[¶ 17.] In this case, the affidavits only attempted to impeach the verdict on grounds that inhere in the verdict itself. The affidavits reflected the juror’s thoughts, discussions, and understanding of the jury instructions. Such testimony was inadmissible, intrinsic information. Because juror affidavits are not permitted on these subjects, the trial court correctly rejected them in reviewing the motion for new trial.

Proposed Jury Instruction

[¶ 18.] Motzko argues that the trial court erred in rejecting her proposed jury instruction that stated:

In South Dakota it is not illegal to drink and drive unless the consumption of alcohol is of a degree to render the driver under the influence of an alcoholic beverage as stated in the foregoing instruction.

[¶ 19.] We review a trial court’s decision to refuse a proposed jury instruction under the abuse of discretion standard. State v. Martin, 2004 SD 82, ¶ 21, 683 N.W.2d 399, 406. “Jury instructions are sufficient when, considered as a whole, they correctly state the applicable law and inform the jury.” State v. Jemison, 1999 SD 29, ¶ 2, 590 N.W.2d 897, 897 (citations omitted). Thus, it is not error for a trial court to reject a proposed jury instruction when it merely amplifies a principle that was sufficiently conveyed in a given instruction. Id.

[¶20.] In this case, the jury was instructed on the elements of the offense and the definition of “under the influence.” Both instructions were correct, accurate, and complete 'statements of the law. Motzko’s proposed jury instruction would have merely expanded, amplified, and commented upon those instructions. Therefore, the refusal to give Motzko’s proposed instruction was not an abuse of discretion.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 23.] SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 24.] I dissent.

[¶25.] The State had the burden to prove beyond a reasonable doubt every element of the crime charged. In this case, the defendant was sitting on her motorcycle, stopped at a stop sign, when her motorcycle was struck from behind, through no fault of her own.

[¶ 26.] The State claims that Motzko had an abnormal mental and physical condition depriving her of the clearness of intellect and self control she normally possessed. There is no showing that Motzko had an abnormal mental or physical condition. There is also no showing that Motzko was deprived of the clearness of intellect and self control she normally possessed. Therefore, the State failed to put forward adequate evidence supporting its claim. Even though the evidence and inferences are to be viewed in the light most favorable to the verdict, we should not lose sight of our duty to determine whether the evidence was “sufficient to sustain a finding of guilt beyond a reasonable doubt.” ¶ 6 supra. When, as in the present case, the evidence falls short of that standard, we should not hesitate to reverse.

[¶27.] In addition, under the circumstances of this case, I submit it was error for the trial court to refuse her proposed jury instruction which provided:

In South Dakota it is not illegal to drink and drive unless the consumption of alcohol is of a degree to render the driver under the influence of an alcoholic beverage as stated in the foregoing instruction.

[¶ 28.] This is a correct statement of the law in South Dakota and the jury should have been so instructed under the circumstances of this case.

[¶ 29.] MEIERHENRY, Justice, joins this dissent.

      . However, Motzko's trial testimony indicated that she consumed the wine sometime between 7:30 and 8:30 p.m., which would have been one to two hours before the accident.

      . Motzko argues that the State failed to establish a chain of custody for the blood test tubes. Although Motzko's attorney questioned Trooper Fox about the chain of custody at the trial, counsel never raised an objection to the court. The "failure to object at trial constitutes a waiver of th[at] issue on appeal.” State v. Moran, 2003 SD 14, ¶ 21, 657 N.W.2d 319, 325 (quoting State v. Andrews, 2001 SD 31, ¶ 19, 623 N.W.2d 78, 83-84).

      . We assume without deciding that the jury found Motzko’s blood alcohol was less than 0.08 percent at the times Motzko admitted that she was driving.

      . Motzko testified at trial that she left her business establishment around 7:30 p.m., went to a bar with her friends, had a glass of wine about the size of a "Solo plastic cup” or a little smaller, returned to her establishment to do a few errands, and left for a second time around 8:30 or 8:40 p.m. to stop by her house and drive to Spearfish.

      . The pertinent examination of Dr. Looyenga occurred as follows:
      Defense Counsel: If the Defendant simply had one drink of wine, a glass of wine, I should say, between 8:00 and 8:30, and we assume her weight as we’ve already talked about, but we don’t assume any blood test at a later date — later time, what would you anticipate her blood alcohol to be at 9:30? Dr. Looyenga: See, once again, I would say, well, depends on how large the glass is. In recent years I’ve run into all kinds of problems with this with tail-boys and beers that contain 22 ounces or whatever. And so I don’t know what’s out there in terms of sizes of glasses of wine. But if a person drank an eight-ounce glass of wine, which is a rather large glass of wine, I would anticipate for this individual to have a blood alcohol level of .072. And if it was, as you indicated, between 8:30 and 8:45, by 9:30, roughly an hour later, even using a low rate of elimination, subtracting only a .01 to .015, the blood alcohol would be a .06. I mean, half of what we measured, basically.

      . Because Motzko's testimony at trial indicated that she consumed wine some time between 7:30 and 8:30 p.m. and that she drove to her house and then to Spearfish around 8:30 or 8:40 p.m., the jury could have also found that Motzko had driven with a blood alcohol level closer to 0.072 percent than to 0.06 percent.

      . SDCL 19-14-7 provides:
      Except as otherwise provided by statute, upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

      . Jury Instruction 7:
      The elements of the crime of driving while under the influence, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
      1. The defendant drove or was in actual physical control of a vehicle.
      2. The defendant was under the influence of an alcoholic beverage.

      . Jury Instruction 10:
      It is not essential to the existence of the offense that the driver of the vehicle should be so intoxicated that the vehicle cannot be safely driven. The expression "under the influence of an alcoholic beverage” covers not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in an alcoholic beverage and which tends to deprive the driver of that clearness of intellect and control of oneself which the driver would otherwise possess.

      . The jury could not have been confused. The jury specifically asked the trial court whether the defendant could be found not guilty on both counts. The trial court responded, "Yes.’'

      . Otherwise, a defendant’s right to appeal is reduced to the right to receive an appellate rubber stamp of the trial court’s rulings.


author: MEIERHENRY, Justice (on reassignment). ZINTER, Justice SABERS, Justice

text:
    2006 SD 15
    In the Matter of the ADOPTION OF a Child known as D.M.
    No. 23434.
    Supreme Court of South Dakota.
    Argued on April 26, 2005.
    Reassigned July 22, 2005.
    Decided Feb. 8, 2006.

      Debra D. Watson of Watson & McGowan, L.L.P., Rapid City, SD, for proposed intervenors and appellants Degens.
    Jean M. Cline of Feehan & Cline, P.C., Rapid City, SD, for adoptive parents and appellees.
    Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, SD, for appellee State of South Dakota.
   MEIERHENRY, Justice (on reassignment).

[¶ 1.] Faye and Kelly Degen (Degens) sought to intervene in the adoption proceedings of their grandniece, D.M. The trial court denied Degens’ motion to intervene and entered an order and decree of adoption. Degens appeal. We affirm.

FACTS

[¶ 2.] Degens originally sought to intervene in the abuse and neglect proceedings in which parental rights to D.M. were terminated. The Department of Social Services (DSS) had approved Degens as an adoptive family along with two other families but ultimately recommended adoptive placement with a nonrelative family. After being denied a right to intervene in the abuse and neglect proceeding, the Degens sought relief from this Court. See In re D.M., 2004 SD 34, 677 N.W.2d 578. On appeal, we held that the rules of civil procedure did not give Degens the right to intervene in the dispositional phase of the abuse and neglect proceeding. Id. ¶ 11. Subsequently, the foster family with whom DSS had placed D.M. filed a petition to adopt the child. Degens then sought to intervene in the adoption proceeding. Again, Degens’ motion to intervene was denied. Degens appeal and raise the following issue.

ISSUE

Whether a relative approved by DSS for placement can intervene as a matter of right and challenge the agency’s proposed adoptive placement with unrelated foster parents.

DECISION

Right to Intervene Pursuant to SDCL 15-6-2I(a)

[¶ 3.] The trial court held that because Degens do not have an independent legal right to adopt D.M., they do not have standing to intervene in the adoption proceeding. On appeal, Degens assert that they have a legally protected interest in D.M. making them real parties in interest. They assert that intervention is necessary to enable the trial court to determine the best adoptive placement for D.M. Since the issue involves a question of law, our review is de novo. Id. ¶ 4.

[¶ 4.] Degens base their right to intervene on SDCL 15-6-24(a)(2), which provides:

Upon timely application anyone shall be permitted to intervene in an action: ...
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

This is a court rule the purpose of which is “to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted.” Mergen v. N. States Power Co., 2001 SD 14, ¶ 5, 621 N.W.2d 620, 622. We have emphasized that intervention is strictly procedural and “that intervention standards are flexible, allowing for some tailoring of decisions to the facts of each case.” Southard v. Hansen, 342 N.W.2d 231, 233-34 (S.D.1984) (citing Kozak v. Wells, 278 F.2d 104 (8thCir.1960)).

[¶5.] South Dakota’s court rule SDCL 15-6-24(a)(2) is almost identical to Federal Rule of Civil Procedure 24(a)(2). The Eighth Circuit Court of Appeals construes Rule 24 liberally in favor of the intervenor. United States v. Union Elec. Co., 64 F.3d 1152, 1158 (8thCir.1995). Citing to numerous Eighth Circuit cases, the federal court explained:

In our review, Rule 24 is construed liberally, and we resolve all doubts in favor of the proposed intervenors. Kansas Pub. Employees Retirement Sys. [v. Reimer Koger Assocs., Inc.], 60 F.3d [1304,] 1307 [(8th Cir.1995)]; Sierra Club v. Robertson, 960 F.2d 83, 86 (8th Cir.1992) (doubts resolved in favor of proposed intervenor); Arkansas Elec. Energy Consumers v. Middle S. Energy, Inc., 772 F.2d 401, 404 (8th Cir.1985) (Rule 24 is to be liberally construed); Corby Recreation, Inc. v. General Electric Co., 581 F.2d 175, 177 (8th Cir.1978) (doubts should be resolved in favor of proposed intervenor); Kozak v. Wells, 278 F.2d 104, 111-12 (8th Cir.1960) (Rule 24 is to be liberally construed).

Id. The Eighth Circuit requires the applicant to “satisfy a tripartite test in order to intervene.” Id. at 1160. The tripartite test is as follows:

1) the party must have a recognized interest in the subject matter of the litigation; 2) that interest must be one that might be impaired by the disposition of the litigation; and 3) the interest must not be adequately protected by the existing parties.

Id. 1160-61 (citation omitted). We adopt this tripartite test and apply it to the instant case.

Whether Degens have a Recognized Interest in D.M. ’s Adoption

[¶ 6.] Applying the tripartite test in this case, we must first determine if Degens have a recognized interest in the subject matter of the litigation. The Eighth Circuit, in analyzing what constitutes a “recognized interest” sufficient to satisfy the rule, said:

Although ... this court defined an interest sufficient to support intervention as “a recognized interest in the subject matter of the litigation,” the courts of appeals of other circuits have stated that intervention requires that the intervenor have an interest in the proceedings that is “direct, substantial, and legally pro-tectable.” These standards are not contradictory. The applicant for intervention must have an interest in the subject matter of the litigation, i.e., an interest that is “direct,” as opposed to tangential or collateral. Furthermore, that interest must be “recognized,” ie., both “substantial” and “legally protectable.”

Id. at 1161 (citations omitted). We have applied a similar test to determine the sufficiency of an interest. We stated in Jackson v. Board of County Commissioners for Pennington County.

“While the intervention statutes of the states differ, there is a general concurrence in the decisions that the interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. • The interest must be one arising from a claim to the subject matter of the action or some part thereof, or a lien upon the property or some part thereof; one whose interest in the matter of litigation is not a direct or substantial interest, but, is an indirect, inconsequential, or contingent one, cannot intervene.”

76 S.D. 495, 500, 81 N.W.2d 686, 689 (1957) (quoting 39 Am.Jur. Parties § 61). It therefore follows that before Degens can intervene, they must be able to show that they have a recognized interest in the litigation. Their interest must be “of such direct and immediate character that [they] will either gain or lose by the direct legal operation and effect of the [adoption order].” Id. Their interest, must also “arise[ ] from a claim to the subject matter of the action,” id., and it must be “direct, substantial, and legally protectable.” Union Electric, 64 F.3d at 1161.

[¶ 7.] Degens claim that their legally protectable interest stems from a provision in DSS’s Child Protection Services Procedures Manual, 06-03. - The manual is given ,to case workers to guide and assist them in making appropriate assessments of children and their circumstances and in making recommendations regarding foster care and adoption placement. The manual provides in relevant part:

The order of preferences-for a perma- ■ nent family is:
1. Birth Family
Father, mother, grandparents, uncles, aunts, cousins, and other persons identified by the child’s family as significant others should be sought out as permanent families to provide care for the child.

Furthermore, the manual provides that “[w]hen it is impossible for a child to live with birth family members who may, or

may not adopt, the Department attempts to place the child with a non-related adoptive family.” Degens argue that since DSS placed the child with non-related foster parents for adoption, no one is representing D.M.’s birth family. They contend that it is in the child’s best interest to be adopted by family members. Unless they are allowed to intervene, they claim that the court will be unable to weigh the importance of familial ties when determining D.M.’s best interests. Degens further argue that leaving the adoption selection entirely within the discretion of. DSS “runs afoul of the court’s statutory duty to do what is in the child’s best interest.”

[¶ 8.] The South Dakota Legislature agreed that family members of abused and neglected children wishing to adopt should have a right to intervene. That right was established, however, as part of the abuse and neglect proceedings. The 2005 Legislature amended the abuse and neglect statutes to require DSS to give placement preference to relatives in both temporary and permanent placement of abused and neglected children. See 2005 SD Laws ch 140 §§ 1-2; see also SDCL 26-7A-19; SDCL 26-7A-19.1. As amended, the law defines the term “relative” as “an adult who is related to the child by blood, adoption, or marriage, and who is the child’s grandparent, aunt, uncle, sibling, brother-in-law, sister-in-law, niece, nephew, great grandparent, great uncle, great aunt, first cousin, second cousin, stepparent, or step-sibling.” SDCL 26A-7A-19. Additionally, the Legislature enacted a new provision specifically giving relatives who were denied adoptive placement the right to intervene. See 2005 SD Laws ch 140, § 3; see also SDCL 26-8A-29.1. The law now provides that “any relative who has been denied " adoptive placement by the Department. of Social Services may request a hearing to determine if the placement was an abuse of discretion.” SDCL 26-8A-29.1.

[¶ 9.] Unfortunately for Degens, the legislation came too late. All abuse and neglect proceedings involving D.M. had been completed prior to the new law taking effect. Consequently, the only avenue of challenge left for Degens was through the adoption proceedings. The adoption statutes, however, do not specifically give family members the right to intervene. When the Legislature added the right to challenge adoptive placement, it did so only as part of the abuse and neglect proceedings.

[¶ 10.] We have long recognized that “adoption is a creature of statute.” Calhoun v. Bryant, 28 S.D. 266, 133 N.W. 266, 270 (1911). Consequently, the rights and procedures for adoption are governed by statute. Challenges to adoptions are likewise controlled by statute. The language of SDCL 25-6-2 appears to contemplate challenges but does not indicate who the challengers might be. It provides:

In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.

Id. The only persons identified as participants or parties to an adoption are the persons adopting the child, the child, DSS, and other persons whose consent is necessary. See SDCL 25-6-3; SDCL 25-6-4; SDCL 25-6-10; SDCL 25-6-11; SDCL 25-6-12. Beyond these identified parties and participants, the statutes do not specifically recognize any other possible inter-venors. Further, the statutes do not address familial preference of any sort.

[¶ 11.] Courts from other jurisdictions have addressed this issue with varying results. The cases, however, offer little guidance because of their dependence on their own state statutes. See, e.g., Baker v. Webb, 127 S.W.3d 622, 626 (Ky.2004) (holding that biological relatives had the right to intervene in an adoption proceeding); In re BC, 1988 OK 4, 749 P.2d 542, 545 (concluding that foster parents had standing “to intervene and to assert their justiciable interest” in an adoption proceeding because they stood “in loco par-entis”); In re Adoption of B.T., 150 Wash.2d 409, 78 P.3d 634, 639 (2003) (concluding that a paternal grandmother and step-grandfather had standing to petition for adoption by broadly interpreting the standing requirement of Washington’s adoption statutes). But see, e.g., In re Adoption of C.C.L.B., 2001 MT 66, ¶¶ 19-20, 305 Mont. 22, 22 P.3d 646, 650 (concluding that second cousins had no “direct, substantial, legally protectable interest” in adoption despite legislative and departmental policies that favored adoptive placement with extended family members because second cousin was not “ ‘extended family members’ as that term is employed in Montana adoption law”); In re Adoption of J.C.G., 177 Wis.2d 424, 428, 501 N.W.2d 908, 910 (1993) (concluding that grandparents did not have standing to intervene in the adoption of their grandchildren because only those who were qualified to petition for adoption under Wisconsin law had a “legally, protect-able interest in the adoption”).

[1f 12.] As with the cases from other jurisdictions, our decision is controlled by our own state statutes. Although the Legislature amended the abuse and neglect statutes to give certain family members standing to intervene, it did not afford the same rights in the adoption statutes. Neither do we find that the policies espoused in the DSS manual give, Degens a legally protectable interest. We are sympathetic to Degens’ plight and their commendable efforts to enlist the assistance of the court in the adoption of their grandniece. Nevertheless, we cannot stretch the definition of a legally protectable interest to include an internal policy statement in an employee manual written by DSS. Adoption rights and procedures are created by the Legislature. At this point, the Legislature has only recognized the right to intervene as part of the abuse and neglect proceedings. These are policy decisions best left to the Legislature. Unfortunately, we must again decline Degens’ request to participate in proceedings involving D.M.

[¶ 13.] We hold that Degens do' not have a right to intervene under SDCL 15-6 — 24(a)(2) in the adoption of D.M. We. affirm.

[¶ 14.] KONENKAMP, Justice, concurs.

[¶ 15.] GILBERTSON, Chief Justice and ZINTER, Justice, concur with a writing.

[¶ 16.] SABERS, Justice, dissents.,

ZINTER, Justice

(concurring).

[¶ 17.] I concur because, in addition to the Court’s analysis, most courts conclude that relatives do not have a legally protect-able interest in another relative’s adoption. Lacking a legally protectable interest in their grandniece’s adoption, Degens were not entitled to intervene as a matter of right under SDCL 15-6-24(a)(2). I also write because the Legislature has explicitly precluded such interventions in adoptions. Therefore, 'Degens’ public policy arguments do not provide an alternative right of intervention.

[¶ 18.] As the Court notes, South Dakota’s intervention statute is almost identical to Federal Rule of Civil Procedure 24(a)(2), which is generally construed liberally in favor .of the proposed intervenor. United States, v. Union Elec. Co., 64 F.3d 1152, 1158 (8thCir.1995). Liberality, however, •“ ‘does not equate with rights of indiscriminate intervention’ and the rule continues to set bounds that must be Observed.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, ■ Federal Practice and Procedure § 1904 (2d ed. 1986). The rule must be followed to protect the “original parties[’] ... interest in the prompt disposition of their controversy and the public[’s] ... interest in efficient disposition of court business.” Id. This case demonstrates the reason for this caveat because D.M.’s termination of parental rights and adoption proceedings, including two intervention attempts and two appeals to this Court, have now consumed four of the nine years of her life..

[¶ 19.] Under Rule 24, most jurisdictions conclude that after a Ghild has been placed for adoption,' even close relative's wishing to adopt lack the legally protecta-ble interest necessary to intervene and litigate as a matter of right. See In re Adoption of H.M.C., 11 S.W.3d 81, 89-90 (Mo.Ct.App.2000) (using the Missouri Supreme Court’s definition of “interest” to conclude that even closer relatives (grandparents) did not have the legally protecta-ble interest necessary to intervene as a matter of right under Missouri’s similar version of Rule 24); In re Adoption of C.C.L.B., 305 Mont. 22, 28-29, 22 P.3d 646, 650 (2001) (concluding that the public policy underlying various statutes and department policies did not provide relatives with a legally protectable interest under a similar version of Rule 24); In re Adoption of Hilliard, 154 Ohio App.3d 54, 56, 796 N.E.2d 46, 48 (2003) (concluding that relatives have no “conditional or ... unconditional right to intervene”); Christian Placement Serv. v. Gordon, 102 N.M. 465, 472, 697 P.2d 148, 155 (N.M.Ct.App.1986) (concluding that a relative, “[s]imply by virtue of her status of grandparent,” was not able to intervene as a matter of right) (partially superseded by statute); Petition of Benavidez, 52 Ill.App.3d 626, 628, 367 N.E.2d 971, 973, 10 Ill.Dec. 362, 364 (1977) (holding that relatives have no “right to intervene in a private adoption where there is no question of the fitness of the adopting parents or the correctness of the mother’s consent, but only the question of whether the grandparents have a preference”); In re Adoption of Taylor, 678 S.W.2d 69, 71-72 (Tenn.Ct.App.1984) (concluding that “[t]here is nothing in the statute [that] provides for the intervention of grandparents [in the adoption proceeding,] and we see no useful purpose in their being permitted to do so as a matter of right”).

[¶ 20.] Rather than citing contrary authority, Degens rely upon a public' policy for a family preference underlying a 2005 legislative enactment. See 2005 SD Sess. Laws Gh. 140, §§ 1-3 (amending SDCL 26-7A-19 and enacting SDCL 26-7A-19.1 and 26-8A-29.1 effective July 1, 2005). I agree with the Court’s observation that this legislation came' “too late” to benefit Degens, and the legislation only provides a family preference in the abuse and neglect proceedings. Supra ¶ 9.

■ [¶ 21.] Furthermore, even if the 2005 legislation applied, it explicitly prohibited a relative’s intervention in an adoption proceeding. Newly enacted SDCL 26-8A-29.1 plainly states “[n]o intervention may be allowed in ... an adoption ... proceeding.” Thus, the 2005 legislation could not have confirmed some public policy allowing Degens’ claim of right to intervene in a relative’s adoption.

[¶ 22.] The Legislature’s express prohibition regarding intervention in adoption proceedings is understandable, considering strong' countervailing public policies. An Illinois court explained, one such countervailing public policy:

We note also that there is a grave matter of public policy implicit in the contention of the grandparents that they have a right to intervene because they are the grandparents and are the preferred parties in an adoption case. In the absence of a statute giving the grandparents a preference (which might be unconstitutionally discriminatory) where are we to stop in allowing relatives to block a proposed. adoption? Is an uncle or aunt in a less favorable position than a grandparent? Indeed, an adult cousin may have closer ties to the child than a grandparent. In many countries it is customary for a brother to adopt his deceased brother's children and the cases are legion in both fact and fiction, viz., David Copperfield and Tom Sawyer, of an aunt adopting a deceased sister’s child. How can we draw the line at- grandparents? Are we to subject every adoption to the hazard of being disrupted or pre-empted by an intervening relative who learns of it midway in its course? While consents cannot legally be required of such relatives, their rights to intervene might very well cause further delays and “red tape” in the adoption process and pose to prospective adopting parents and agencies the frustrating question whether to ignore such a possibility and be unpleasantly surprised half-way through the adoption, or to invite trouble by attempting to get some sort of waiver from the close relatives of the child. Nor can we overlook the possibility that such relationship might be exploited for the benefit of the relatives, disregarding the child’s best interests. A decision which invites such unwelcome possibilities would, we think, be contrary to public policy.
The trial court found that in the absence of any allegations of unfitness on the part of the adopting parents or any question relative to the mother’s consent or the termination of the putative father’s rights, there was no legal basis for the petition to intervene. We agree.

Petition of Benavidez, 52 Ill.App.3d 626, 630, 367 N.E.2d 971, 974-75, 10 Ill.Dec. 362, 365-66 (1977).

[¶ 23.] Considering the facts that there was no applicable law giving Degens a legally protected interest in this adoption, there are conflicting public policies concerning this matter, and the 2005 Legislature expressed its policy on this type of intervention, this Court has no authority to retroactively impose a contrary policy and afford rights that the Legislature has specifically rejected.

[¶ 24.] GILBERTSON, Chief Justice, joins this special writing.

SABERS, Justice

(dissenting).

[¶ 25.] I respectfully dissent. Almost two years ago, the majority denied Degens the right to intervene in the abuse and neglect proceeding. See In re D.M., 2004 SD 34, 677 N.W.2d 578. The Legislature acted quickly to preclude such a result in the future. See 2005 SD Sess Laws ch 140, §§ 1-3 (amending SDCL 26-7A-19 and enacting SDCL 26-7A-19.1 effective July 1, 2005); see also SDCL 26-8A-29.1. Now, the same majority denies Degens the right to intervene in the adoption proceeding.

[¶ 26.] In the prior case, this Court had the opportunity to determine whether the Degens could intervene in a subsequent adoption proceeding. D.M., 2004 SD 34, ¶ 9, 677 N.W.2d at 582. It chose not to address that issue. Id. The dissent noted,

I would respectfully point out that refusing to consider whether the Degens can intervene in a subsequent adoption proceeding merely extends the “undue delay” the trial court was concerned about. Now [this] case can go back to the circuit court for consideration of the adoption, the Degens can attempt to intervene again, the court can deny intervention and the parties can once again bring this case before this court.

Id. at ¶ 21, 677 N.W.2d at 584 (Sabers, J, dissenting). Thus, had the Court either correctly decided this case in the first instance, or at least reached the adoption issue, any further delay would have been avoided.

[¶ 27.] Now, almost two years later, the Court addresses the adoption issue and again denies Degens an opportunity to adopt their grandniece. It does so by incorrectly concluding that Degens do not have the right to intervene and by permitting DSS to ignore its internal policies. The Court also overlooks the fact that the Legislature, by amending SDCL 26-7A-19, clearly intended that individuals in De-gens’ position have an opportunity to adopt their relatives. Because intervention standards are supposed to be flexible and construed liberally, Degens should have the opportunity to intervene and adopt D.M. if it is in her best interest.

      . D.M. became eligible for adoption through DSS after the parental rights to the child were involuntarily terminated. Through the process of finding adoptive placement, DSS approved three adoptive families. Two of the families were relatives of D.M., the other was a non-related foster family. DSS rejected both of the family placements and selected the foster family for D.M.'s adoption.

      . The Federal rule provides:
      Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
      Fed. R. Civ. P. 24(a).

      . The concurrence correctly points out that the Legislature specifically foreclosed intervention in an adoption proceeding under the abuse and neglect statutes. SDCL 26-8A-29.1 specifically states that ”[n]o intervention may be allowed in a proceeding involving an apparent, alleged, or adjudicated ’ abused or neglected child, including an adoption or guardianship proceeding for a child placed in the custody of the Department of Social Services pursuant to 26-8A-27, except as provided by this chapter and under the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), as amended to January 1, 2005.” That provision, however, was enacted in 2005. See 2005 SD Laws ch. 140, § 3. Therefore, it does not apply to the Degens' case, which was filed and determined in 2004.

      . Degens did not make an argument for permissive intervention under SDCL' 15-6-24(b) or an argument for intervention, as a matter of right under SDCL 15-6-24(a)(l).

      . The Court cites three cases suggesting that some states have, under different statutes, permitted relatives to intervene in adoption proceedings. See supra ¶ 11. While the Court acknowledges that these cases "offer little guidance because of their dependence on their own state statutes,” the cases actually provide no guidance in determining the right to intervene under Rule 24.

        In re Adoption of B.T., 150 Wash.2d 409, 78 P.3d 634 (2003), is inapposite because it only involved the question of standing; i.e., who could petition for adoption. The Washington court noted that "the issue before [that court was] whether grandparents [had] standing to even petition the court for the adoption of their grandchild.” Id. at 417, 78 P.3d at 638. In answering that question, the court looked "to the statutes to define standing in the adoption process.” Id. (emphasis added). Thus, In re Adoption of B.T. did not involve the right to intervene in a third party's adoption under Rule 24.
      In Baker v. Webb, 127 S.W.3d 622 (Ky.2004), a divided court did consider a biological relative’s (second cousin's) request for intervention as a matter of right under Rule 24. Although the court found a sufficient interest, the case involved statutes and formally adopted administrative regulations that clearly provided "a preference for relative placement in adoption proceedings." Id. at 625 (emphasis added). Thus, a legally protectable interest was provided by statute. However, as is explained hereinafter, South Dakota does not have a regulation or statute granting such a preference in adoption proceedings.
      Finally, in Matter of B.C., 749 P.2d 542 (Okla.1988), the Oklahoma Supreme Court concluded that foster parents could intervene as a matter a right because they were "in loco parentis.” Id. at 545. Under Oklahoma law, " ‘in loco parentis' means in place of a parent, and a 'person in loco parentis' [is] defined as one who has assumed the status and obligations of a parent without a formal adoption.” Id. (citation omitted). Therefore, the foster parents, who had cared for and treated the child as a member of their family for approximately six and a half years, were "persons in loco parentis.” Id. Their status as "persons in loco parentis” also provided them with "standing to intervene and to assert their justiciable interest in the adoption.” Id. Unlike Matter of B.C., however, D.M. has never become a member of the Degen family by residing with them for an extended period of time. Therefore, Degens did not possess in loco parentis status. On the contrary, only the foster family (who ultimately adopted D.M.) held in loco parentis status sufficient to establish a legally protectable interest under the reasoning of Matter ofB.C.

      . I also agree that DSS’s internal policy of providing adoptive preference to family members, as reflected in its procedures manual, does not provide Degens with .a legally pro-tectable interest. See supra 11 12. The policy is only an executive branch policy that guides and assists DSS employees in making their discretionary recommendations for placement and adoption. The policy does not, however, purport to extend a legally protectable interest in extended relatives. In fact, because DSS's internal procedure manual was not adopted as an administrative rule of South Dakota, it could not have afforded Degens a legally protectable interest in the adoption of any child. Internal policies generally do not create a legally protectable interest because only duly “adopted” rules express "the will of the” State, and only duly “adopted” rules have the "force of law.” See SDCL 1-1-23 (providing that the will of the sovereign is expressed through various methods including "[r]ules. of practice and procedure adopted by departments”); Reid v. Huron Bd. of Educ., 449 N.W.2d 240, 243 (S.D.1989) (concluding that "rules and regulations of an administrative agency governing proceedings before it, duly adopted and within the authority of the agency are binding as if they were statutes enacted by the legislature”) (citations omitted). See also Feltrop v. South Dakota Dep’t of Soc. Servs., 1997 SD 13, ¶ 5, 559 N.W.2d 883, 884 (recognizing that only "[a]d-ministrative rules have the force of law and are presumed valid”) (citations omitted).

      . The dissent suggests that this writing has applied the "detriment of the amended statutes” without applying the "benefit.” See infra n. 8. However, it is Degens rather than this writing that seek to apply some but not all of the policy underlying the 2005 amendments.

      . The concurrence accurately points out that the Legislature has now precluded parties from intervening in adoption proceedings. However, that amendment does not apply to Degens as their case was filed and determined in 2004. See majority opinion n. 3. Moreover, by prohibiting intervention in adoption proceedings, it would be assumed that a party would have had the right to intervene and in fact be given preference in the abuse and neglect proceeding. See SDCL 26-8A-29.1. Degens were unable to avail themselves of that right because the legislation was enacted after and in response to this Court's first decision. The concurrence mentions that it is too little too late for Degens to receive the benefit of the amended statutes. However, it then goes on to apply the detriment of the amended statutes and notes that the Legislature has rejected intervention in adoption proceedings. In fairness, the detriment of an amended statute should be no more retroactive than the benefit. The only reason Degens are attempting to intervene in the adoption proceeding is because this Court put them in that position by refusing to allow them to intervene in the abuse and neglect proceeding.

      . Degens have a legally protected right to intervene in the adoption proceeding just as they did in the abuse and neglect proceeding. See DM., 2004 SD 34, ¶¶ 24-27, 677 N.W.2d at 584-86 (Sabers, J., dissenting). The fact that the majority and the concurrence failed to recognize Degens’ legally protected right in the prior case is no justification for not acknowledging it in this matter.


author: SABERS, Justice.

text:
    2006 SD 14
    Randy KASUSKE, Claimant and Appellant, v. FARWELL, OZMUN, KIRK & CO., Employer and Appellee, and Great American Insurance Companies, Insurer and Appellee.
    Nos. 23555, 23571.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided Feb. 8, 2006.

      Brian L. Radke, Radke Law Office, Sioux Falls, South Dakota, Attorneys appellant.
    Timothy M. Gebhart of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for appellees.
   SABERS, Justice.

[¶ 1.] Randy Kasuske (Kasuske) petitioned the South Dakota Department of Labor (Department) to reopen his workers’ compensation claim. After a hearing, the Department issued an order dismissing Kasuske’s petition. On appeal, the circuit court affirmed the Department’s decision. Kasuske appeals. We affirm.

FACTS

[¶ 2.] Randy Kasuske was employed as a shipping clerk by Farwell, Ozmun, Kirk & Co. (Employer). In March 1983, Ka-suske injured his lower back while lifting a seventy-five pound box. Kasuske felt pain in his lower back that extended down his left leg.

[¶ 3.] It was later discovered that Ka-suske had suffered a herniated disk. Over the course of several years, Kasuske underwent multiple surgeries performed by multiple physicians. Employer, through its insurer, Great American Insurance Companies (Insurer), paid the expenses associated with Kasuske’s surgeries, physical therapy, pain medications, and other workers’ compensation benefits. Kasuske stopped working in 1987 and began receiving social security disability benefits in 1988. He later filed a petition for hearing with the Department, alleging that the injury had rendered him permanently and totally ..disabled.

[¶ 4.] In 1992, Kasuske entered into a settlement agreement with Employer and Insurer. He released Employer and Insurer from all .past, present, and future claims, including his claims for permanent and total disability benefits under the odd lot doctrine. In exchange, Employer and Insurer paid Kasuske a lump sum of $60,000, plus an additional $1,795.18 in unpaid medical expenses. The agreement permitted Kasuske to pursue future medical treatment. However, Employer and Insurer reserved the right to dispute whether the treatment was reasonable, necessary, or medically related to Ka-suske’s injury. The Department approved the agreement and dismissed Kasuske’s petition with prejudice.

[¶ 5.] Kasuske’s physical condition did not change during the four years subsequent to signing the agreement. However, in 1996, he started complaining of pain in his upper back, shoulders, arms, and hands. He also complained of extreme headaches. Kasuske sought treatment for these ailments from several physicians.

[¶ 6.] He petitioned the Department to reopen his claim based upon the claim that his condition had deteriorated by developing new and more serious features. Employer responded by arguing that Kasuske had already been compensated for his permanent and total disability and that the agreement barred him from collecting further benefits. Both parties filed motions for summary judgment on whether the settlement agreement barred Kasuske’s petition to reopen. The Department denied Employer’s motion and granted summary judgment for Kasuske, relying on our decision in Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225. The matter was then scheduled for hearing.

[¶ 7.] Kasuske and his wife were the only witnesses who testified at the hearing. He introduced his medical evidence by stipulation. In addition, he introduced various letters between his attorney and his physicians. Employer introduced the deposition of its expert witness, Dr. Farn-ham, who had conducted an independent medical examination of Kasuske.

[¶ 8.] The Department concluded that Kasuske’s present condition was not causally related to the injury he sustained in 1983 and, as a result, ruled in favor of Employer. Kasuske appealed to the circuit court. The circuit court affirmed, relying on the same rationale as the Department. We address the following issue on appeal:

Whether Kasuske met his burden of proving that his present medical conditions are causally related to the 1983 injury.

Standard of Review

[¶ 9.] “In workers’ compensation cases, our standard of review is controlled by SDCL 1-26-37.” Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465. The Department’s factual findings and credibility determinations involving Kasuske’s testimony are reviewed under the clearly erroneous standard. Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83 (citing Tieszen v. John Morrell & Co., 528 N.W.2d 401, 403-04 (S.D.1995)). However, the vast majority of the record in this case is comprised of documentary evidence. We review documentary evidence de novo, affording no deference to the Department’s findings or inferences. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661 (citing Watertown Coop. Elevator Ass’n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171).

[¶ 10.] Finally, pure questions of law and mixed questions of law and fact are fully reviewable. Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83 (additional citations omitted). Although SDCL 1-26-37 mandates the degree of deference we give to the Department’s decision, the circuit court’s decision receives no deference. Kassube, 2005 SD 102, ¶ 25, 705 N.W.2d at 465 (“When a circuit court has reviewed an administrative agency’s decision, we review the agency’s decision unaided by any presumption that the circuit’s decision was correct.”) (internal quotations omitted).

Decision

[¶ 11.] “Ordinarily, workers’ compensation awards whether by agreement or adjudication are final unless the Department reserves jurisdiction.” Sopko, 1998 SD 8, ¶ 9, 575 N.W.2d at 229. However, the rules governing the finality of releases in workers’ compensation cases are more forbearing. Id. ¶ 10. We have continually held that a release may be set aside “when the consequences of an injury were ... discovered after the release was signed.” Id.; Mills v. Spink Electric Coop., 442 N.W.2d 243 (S.D.1989); Novak v. C.J. Grossenburg and Son, 89 S.D. 308, 232 N.W.2d 463 (1975). The Legislature codified an exception to the finality rule in workers’ compensation cases by enacting SDCL 62-7-33. That statute provides in part:

Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the Department of Labor pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may-be ended, diminished, increased, or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition-of the employee warrants such action[]

(emphasis added).

[12.]The party asserting a “change in condition” bears the burden of proving it. Sopko, 1998 SD 8, ¶ 12, 575 N.W.2d at 230 (citing Mills, 442 N.W.2d at 246). Only when that burden has been met, may the Department reopen a previous award. Id. ¶ 12 (additional citations omitted). In Mills, we adopted a broad interpretation' of the term “change in condition,” noting:

The “change in condition” which justifies reopening and modification is ordinarily a change, for better or worse in claimant’s physical condition. This change may take such forms as progression, .deterioration, or aggravation of the com-pensable condition, achievement of disabling character by a previously symptomatic complaint, appearance of new and more serious features, such as discovery of a disc herniation in a back case, failure to recover within the time originally predicted, and superimposition or .worsening of a neurotic condition.

442 N.W.2d at 246. Even if a claimant proves a “change in condition,” the Department may refuse to reopen the claim if the “change in condition” was foreseeable at the time of settlement. Sopko, 1998 SD 8, 15, 575 N.W.2d at 233 (“When an injured worker seeks to reopen a settlement which includes a waiver of future rights, the focus is on whether the asserted “change in condition” derives from an injury unknown at the time of the settlement or from a known injury with its disabling character unknown.”); see also Mills, 442 N.W.2d at 246 (“Because he [Mills] could not have anticipated such extensive future medical expenses, any alleged waiver is ineffective.”).

[13.]It is also well settled that “to recover. disability benefits under the workers’] compensation statutes, the claimant has the burden of establishing a causal connection between the employment and the disability.” Day v. John Morrell Co., 490 N.W.2d 720, 724 (S.D.1992) (citing Lawler v. Windmill Restaurant, 435 N.W.2d 708, 710 (S.D.1989)) (internal quotations omitted). Ordinarily, the opinions of experts are required to establish a causal relationship between the incident and the injury. Id. (citing Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991)). “A workers’ compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.” Id. (quoting Wold v. Meilman Food Industries, 269 N.W.2d 112, 115 (S.D.1978)). Thus, claimant must introduce medical evidence sufficient to’ establish causation by a preponderance of the evidence. Enger, 1997 SD 70, ¶ 18, 565 N.W.2d at 85 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76, 78).

[14.] Our modern cases have not focused on the causation element of reopening a workers’ compensation claim. Mills focused only on the effect of the release and settlement and whether the claimant had proved a “change in condition.” Mills, 442 N.W.2d at 244. However, the burden of causation remains a prerequisite to reopening a claim. In order to reopen a claim, the claimant must prove that the “change in condition” is causally connected to the original, compensable injury.

[15.] We addressed, in a collateral manner, the issue of causation in Sopko. 1998 SD 8, ¶ 17, 575 N.W.2d at 232. Specifically, the employer in Sopko argued that the claimant’s “change in condition” was not causally connected to his work-related accident. Id. We refused to permit parol evidence on that issue, when the injury was known prior to settlement, and the settlement agreement made no mention that causation was in dispute. Id.

[16.]Kasuske relies heavily on this portion of Sopko, claiming that we are limited to the settlement agreement in determining the issue of causation. However, as Employer points out in its brief, Kasuske’s argument fails in two respects. First, the parol evidence upon which the employer relied in Sopko was testimony by the claimant’s attorney that he could not have proved that the injury was causally related to the employment had the matter not been settled. Kasuske, on the other hand, urges us to ignore the medical records and vocational reports in the present case. Because a “change in condition” must be proved to reopen a workers’ compensation claim, this evidence will be highly relevant in all matters similar to the present case. Indeed, it would be very difficult to ascertain a “change in condition” if courts cannot examine the pre-settlement and post-settlement medical records. Second, even if we were to adopt Kasuske’s position, he would be precluded from relying on the parol evidence rule because he failed to object to any of this evidence at the hearing. First Nat’l Bank v. Bank of Lemmon, 535 N.W.2d 866, 868 (S.D.1995). In fact, Kasuske actually introduced some of this evidence.

[17.]In summary, there are three things a claimant must prove to have his workers’ compensation claim reopened. First, the claimant must prove a “change in condition.” Second, the claimant must prove that the asserted “change in condition” derives from an injury unknown at the time of settlement or from a known injury with its disabling character unknown. Finally, a claimant must prove that the unknown injury is causally connected to employment, or that the unknown disabling character is causally connected to the original, compensable injury.

[18.]Kasuske claims his “change in condition” includes additional pain in his arms, upper back, and shoulders. He also claims that he suffers constant headaches. According to Kasuske, this additional pain is the result of myofascial pain syndrome which is turning into fibromyalgia. After reviewing the record, we conclude that Kasuske has failed to meet his burden of proving his alleged “change in condition” is causally connected to his original, compen-sable injury.

[19.] The record in this case is comprised of thousands of pages of medical records and correspondence. Kasuske has been treated by four different physicians since entering into the settlement agreement with Employer. Two of those physicians now support his assertion that his new conditions are causally related to the injury he suffered in 1983. However, those physicians have been inconsistent in their opinions. The other two treating physicians concluded that either Kasuske does not have fibromyalgia, or that it is impossible to determine the cause of fibromyalgia. Finally, a fifth physician, who conducted an independent medical examination of Ka-suske, determined that he did not have fibromyalgia and, that even if he did, it would not be related to the injury suffered in 1983. This was the only physician whose testimony was subject to cross-examination. The other four physicians’ opinions were introduced by affidavit, or by way of medical records that were stipulated to between the parties. We cannot say it was error for the Department to rely more heavily upon the deposition testimony. See Paulson v. Black Hills Packing Co., 1996 SD 118, ¶ 13, 554 N.W.2d 194, 195 (affirming the trial court when it gave more weight to testimony where the physician had been “thoroughly and adversely examined under oath”). Under these circumstances, Kasuske has not met his burden of proving that his alleged “change in condition” is causally related to the 1983 injury.

[20.]Affirined.

[21.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Kasuske raises several issues on appeal. We find some without merit and others unnecessary to address because of our holding on the issue of causation.

      . The Department did not reach the issue of whether Kasuske suffered a "change in condition.”

      . "A condition characterized by chronic pain in the muscle tissues, similar to fibromyal-gia.” Available at http://www.med-terms.com/script/main/art. asp?ar-ticlekey=11694 (Last visited on 12/23/2005).

      . "A syndrome characterized by chronic pain, stiffness, and tenderness of muscles, tendons, and joints without detectable inflammation.” Available at http://www.med-terms.com/script/main/art. asap?ar-ticlekey=3453 (Last visited on 12/23/2005).

      . Because of our holding as to causation, it is unnecessary to address whether Kasuske's symptoms constitute a "change in condition.”