author: AMUNDSON, Retired Justice.

text:
    2002 SD 145
    GRACELAND COLLEGE CENTER FOR PROFESSIONAL DEVELOPMENT AND LIFELONG LEARNING, INC., Appellant, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellee.
    No. 22347.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Nov. 26, 2002.

      Timothy M. Engel of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorney for appellant.
    Michael T. Kenyon, Department of Revenue, Pierre, South Dakota, Attorney for appellee.
   AMUNDSON, Retired Justice.

[¶ 1.] The South Dakota Department of Revenue (Department) assessed taxes against SkillPath, a division of Graceland College Center for Professional Development and Lifelong Learning, Inc. (Skill-Path), for seminars and services provided by the corporation in South Dakota. Skill-Path contested the certificate of assessment with the Secretary of Revenue, alleging it should be exempt from certain taxes. The Department upheld the certificate. SkillPath appealed the Department’s decision to circuit court, and the decision was affirmed. SkillPath appeals, and we affirm.

FACTS

[¶ 2.] SkillPath is a not-for-profit corporation that presents business seminars on computer training, secretarial skills and other business-related topics. The vast majority of SkillPath’s seminars are presented to employees whose fees are paid by their employers. These programs are presented by independent contractors, and are generally held in hotel meeting rooms.

[¶ 3.] In September of 1999, SkillPath underwent a sales and use tax audit, covering January 1996 through December 1998. On December 7, 1999, the Department issued a certificate of assessment in the amount of $31,989.19, plus interest, to SkillPath. SkillPath contested the certificate. On April 14, 2000, a hearing was held before a hearing examiner. Evidence was presented regarding SkillPath’s marketing, the types of seminars it provides, and to whom the seminars are provided. The hearing examiner found that SkillPath’s seminars were entitled to a tax exemption. The hearing examiner found SkillPath’s courses qualified for tax exemption under SDCL 10-45-12.1 under SIC Manual 8234 (Data Processing Schools) and 8244 (Business and Secretarial schools). On appeal, the Secretary of Revenue reversed the hearing examiner’s decision. The Secretary of Revenue found that the services provided by Skill-Path were not exempt from taxation under SDCL 10-45-12.1. The Secretary of Revenue reasoned that SkillPath was not exempt as a “vocational school” or a “continuing education program.” The Secretary of Revenue found SkillPath’s seminars were more appropriately classified in SIC 8299 (Schools and Educational Services, Not Elsewhere Classified) or in the alternative SIC 7389 (Lecture Bureaus), and thus not exempt from tax.

[¶ 4.] SkillPath appealed the Secretary of Revenue’s final decision, and the circuit court affirmed. SkillPath appeals raising the following issue:

Whether services offered by SkillPath are exempt from South Dakota sales tax pursuant to SDCL 10-45-12.1.

STANDARD OF REVIEW

[¶ 5.] This Court clarified the standard of review for administrative appeals in Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶¶ 6-7, 575 N.W.2d 225, 228-29.

Our standard of review, delineated in SDCL 1-26-36, requires us to give great weight to the findings and inferences made by the Department on factual questions. Helms v. Lynn’s, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finch v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988). We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. In Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986). If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)(or-igin of definition). Questions of law, of course, are fully reviewable. Caldwell v. John Morrell & Co. 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991).

When reviewing statutes that impose taxes we have stated:

The question of whether a statute imposes a tax under a given factual situation is a question of law. Statutes which impose taxes are to be construed liberally in favor of the taxpayer and strictly against the taxing body. Statutes exempting property from taxation should be strictly construed in favor of the taxing power. The words in such statutes should be given a reasonable, natural, and practical meaning to effectuate the purpose of the exemption. Nat’l Food Corp. v. Aurora Cty. Bd. of Comm’rs, 537 N.W.2d 564, 566 (S.D.1995) (citing Thermoset Plastics, Inc. v. Dep’t of Revenue, 473 N.W.2d 136, 138-39 (S.D.1991)); see also Estate of He Crow v. Jensen, 494 N.W.2d 186,191 (S.D.1992) ( [stating] “[w]e construe administrative rules according to their intent as determined from the rule as a whole and other rules relating to the same subject.”)

Matter of Sales and Use Tax Refund Request of Media One, Inc., 1997 SD 17, ¶ 9, 559 N.W.2d 875, 877.

DECISION

[¶ 6.] SkillPath argues it should be exempt from taxation under our laws because it is either a “vocational school” or a “continuing education program.” Skill-Path contends that SDCL KM5-12.1 provides two sales tax exemptions for its seminars, “educational services” or “continuing education program.” SDCL 10-45-12.1 provides, in pertinent part:

The following services enumerated in the Standard Industrial Classification Manuel, 1987, as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President are exempt from the provisions of this chapter: ... education services (major group 82) except schools and educational services not elsewhere classified (industry no. 8299); ... The following are also specifically exempt from the provision of this chapter: ... continuing education programs; tutoring; vocational counseling, except rehabilitation counseling ....

Educational Services

[¶ 7.]' SMllPath claims its services qualify as a vocational school exempt from tax under Major Group 82 “educational services.” SDCL 10-45-12.1 adopts the classification scheme set forth in the Standard Industrial Classification Manual (SIC) maMng it necessary to examine the SIC Manual in order to determine the proper classification. An updated version of the SIC Manual, the North American Industry Classification System (NAICS Manual), has been formulated, however the legislature has not incorporated the NAICS Manual into SDCL 10-45-12.1. “Creation of tax exemptions is exclusively within the province of the Legislature, not the judiciary.” H & R Roofing of South Dakota, Inc. v. Dep’t of Revenue, 2001 SD 39, ¶10, 623 N.W.2d 508, 511. Application of the NAICS Manual would in effect create tax exemptions not granted by our legislature.

[¶ 8.] SMllPath claims it falls under “vocational school” of the SIC Manual Industry Group 824. This Court has said, “[w]ords used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature’s apparent intention justifies departure.” Meyerink v. Northwestern Public Service, 391 N.W.2d 180, 183-184 (S.D.1986) (citing State v. Big Head, 363 N.W.2d 556, 559 (S.D.1985)). The plain meaning of vocational school is a “school, esp. one on a secondary level, that offers instruction and practical introductory experience in sMlled trades such as mechanics, carpentry, and plumbing.” American Heritage Dictionary 1511 (3d ed 1997).

[¶ 9.] The SIC Manual provides the following examples of “vocational schools:” “data processing schools,” “computer repair training,” “secretarial schools,” “court reporting school,” and “truck driving schools.” It is clear from the plain meaning of vocational school and the examples provided in the SIC Manual that such programs are intended to teach one the skills necessary to work in a particular occupation or vocation. SkillPath’s seminars are not aimed at providing one with the necessary skills to enter into a specific vocation or occupation. SMllPath is not a degree granting institution nor does Skill-Path have a formal course of study. Skill-Path offers seminars ranging in length from one to two days covering a variety of topics. SkillPath does not market its seminars to those interested in learning a vocation but targets those already working in a-business. Ninety-five percent of Skill-Path’s attendees have their fees paid by their employers.

[¶ 10.] SMllPath does offer different computer related seminars such as “Computer Repair Training” and “CompuMas-ter-PC Troubleshooting” in which the attendees actually take a computer apart. However, attending one of SMllPath’s seminars will not qualify one to become a computer repairman or a computer consultant. These courses are directed more towards being able to solve problems with one’s own computer, not for the purpose of teaching a vocation.

[¶ 11] SkillPath’s seminars are not aimed at teaching one a new vocation or specific occupation and cannot be classified as a “vocational school.” We held in Matter of the State Sales and Use Tax Liability of Pam Oil, Inc., 459 N.W.2d 251, 255 (S.D.1990) that “the general rule has been established that the taxpayer has the burden of proving entitlement to a statutory exemption” (citations omitted). SkillPath has failed to meet this burden. To classify SkillPath as a “vocational school” would require this Court to legislate by broadening the definition of “vocational school” contrary to the premise that “[statutes allowing tax exemptions are exactingly and narrowly construed in favor of the taxing entity.” Watertown Coop. Elevator Ass’n v. South Dakota Dep’t of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (citing Matter of State & City Sales Tax Liability of Quality Service Railcar Repair Corp., 437 N.W.2d 209, 211 (S.D.1989)). It is clear the legislature did not intend SkillPath to be exempt from taxation as a vocational school. “Exemptions are a matter of legislative grace and doubts are resolved.in favor, of taxation.” Matter of Townley, 417 N.W.2d 398, 400 (S.D.1987). The legislature obviously has not graced Graceland' with án exemption.

Continuing Education

[¶ 12.] SkillPath next argues it is exempt from taxation as a “continuing education” program. In SDCL 10-45-12.1 the legislature exempts “continuing education programs” without reference 'to the SIC Manual. This Court has held that services specifically listed in that part of the statute in which the legislature makes no reference to the SIC Manual will be exempt from tax, regardless of the classifications made in the SIC Manual. This is true so long as one carries the burden of proving that they fall within the exemption. Welcome Wagon Int’l, Inc. v. South Dakota Dep’t of Revenue, 318 N.W.2d 5, 6-7 (S.D.1982). Therefore, a claim of exemption under “continuing education” is analyzed like any other exemption grapted by the legislature.

[¶ 13.] SkillPath argues that this Court should apply the International Association for Continuing Education and Training’s (Association) definition of “continuing education.” This definition of “continuing education” in the settled record reads as follows: “a structured educational and training experiences for- personal or professional development in which participants are assumed to have previously attained a basic level of education, training or experience.” The Department argues the term “continuing education programs” refers to updating the skills necessary to perform a specific occupation.

[¶ 14.] Both this Court and the legislature have linked “continuing education” with updating one’s skills in relation to a particular occupation. In Brown v. State Board of Examiners in Optometry, 263 N.W.2d 490, 494 (S.D.1978) we addressed “continuing education” as it pertained to the licensing of optometrists. Relying on SDCL 36-7-20.1 Continuing Education Required, the statute provides:

All registered optometrists whenever licensed in the state of South Dakota are and shall be required to take courses of study in subjects relating to the practice of the profession of optometry to the end that the utilization and application of new techniques, scientific and clinical advances, and the achievements of research will assure expansive and comprehensive care to the public.

“Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears..” SDCL 2-14-4. The legislature has enacted numerous other statutes requiring “continuing education” for a host of other occupations. Each statute refers to “continuing education” in reference to a specific occupation. The legislature has clearly manifested its intent to associate “continuing education” with a specific occupation.

[¶ 15.] SkillPath’s seminars are not such that would qualify as “continuing education” for the purpose of updating an individual as to the newest development in one’s specific field. Although SkillPath provides a few seminars targeted at specific occupations these seminars cannot be classified as “continuing education.” Skill-Path argues that a number of its seminars are directly related to “office procedures” and “secretarial skills.” However, Skill-Path has offered no proof that any of its seminars provide up-to-date information related to a specific occupation. SkillPath seminars are more of a “self-help” type seminar useful to one engaged in an occupation or not. For example, SkillPath offers a course called The Essentials of Credibility, Composure, and Confidence, which was described by SkillPath’s vice-president of faculty and curricula, Ms. Mayorga, as a seminar to “teach [women] how not to cry, how to maintain their composure even when they’re very upset or very angry.” Clearly such a seminar would not be considered “continuing education.” Teaching women not to cry is not a course necessary for a specific occupation but is merely a so-called “self-help” type of seminar useful to one whether at work, home, or elsewhere.

[¶ 16.] SkillPath has failed to provide any evidence that its seminars are intended to up-to-date a person’s knowledge about their occupation. In addition, Skill-Path’s seminars do not require anything more than a general education. SkillPath teaches basic introductory skills that anyone could understand. There is no indication that a formal education of any kind is required before attending a SkillPath seminar.

[¶ 17.] The trial court held SkillPath is more properly classified in SIC 8299 (Schools and Educational Services, Not Elsewhere Classified). Some of Skill-Path’s courses are consistent with the courses listed in SIC 8299. SkillPath’s courses, The Essentials of Credibility, Composure, and Confidence, How to Be come a Better Communicator, and Assertive Communication Skills for Women, fall under “personal development schools” within SIC 8299. For example, Ms. Mayor-ga described the Assertive Communication Skills for Women seminar as a course to teach women “how to negotiate to get what you need in the office ... and how to be calm and know the difference between aggressive and assertive and passive.” This course would clearly fit into the “personal development schools” within SIC 8299.

[¶ 18.] Alternatively, the trial court found SkillPath’s seminars could be classified in SIC 7389 (Lecture Bureaus), Major Group 73. Major Group 73 of the SIC Manual “includes establishments primarily engaged in rendering services, not elsewhere classified, to business establishments on a contract or fee basis ...” Under SDCL 10-45-5.2 Major Group 73 in its entirety, is specifically subject to tax. The term “lecture bureau” is undefined in the SIC Manual. This Court has said “words used by the legislature are presumed to convey their ordinary popular meaning.” State v. Harris, 494 N.W.2d 619, 622 (S.D.1993). The definition of lecture is “[a]n exposition of a given subject delivered before an audience or class.” American Heritage Dictionary 773 (3rd ed 1997). A bureau is a “business that offers information of a specified kind: a travel bureau.” American Heritage Dictionary 187 (3rd ed 1997). Therefore a “lecture bureau” is a business that offers information about a specific subject that is presented to a group of people.

[¶ 19.] SkillPath is a business primarily engaged in providing services to other businesses. SkillPath markets directly to other businesses and ninety-five percent of its attendees fees are paid by employers. In addition, SkillPath’s seminars are presented by independent contractors and are generally held in hotel rooms.

[¶ 20.] SkillPath does not fit under “vocational school” or “continuing education” and is more properly classified under SIC 8299 or in the alternative SIC 7389 and thus not exempt from tax.

[¶ 21.] SkillPath has not carried its burden of proving entitlement to the exemption under SDCL 10-45-12.1. We affirm.

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

[¶ 23.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . This amount included $687.98 for catalog sales, which is not contested by SkillPath.

      . The Standard Industrial Classification Manual was prepared in 1987 by the Statistical Policy Division of the Office of Management and Budget, Office of the president. The SIC Manual is dividfed into two-digit major groups and three-digit industry groups or four-digit industry codes.

      . A list of these statutes are as follows: interpreters (1-36A-12), librarians (14-1-44(3)), family court mediators (25-4-58.1(3)), mental health professionals (27A-1-9), physician assistants (36-4A-32), respiratory care practitioners (36-4C-14), chiropractors (36-5-15.3), dentists (36-6A-55), podiatrists (36-8-23), dieticians (36-10B-9), pharmacist (36-11-23.1), veterinarians (36-12-19.1), electricians (36-16-12), public accountant (36-20A-36), real estate professionals (36-21A-62), real estate appraisers (36-21B-3), licensing home inspectors (36-21C-6), hearing aid dispensers (36-24-12.1(15)), social workers (36-26-26), psychologists (36-27A-26), nursing facility administrators (36-28-21.1), athletic trainers (36-29-14), family therapists (36-33-14), and insurance producers and solicitors (58-30-116).

      . In addition, the record reflects that Skill-Path’s seminars covered a wide array of topics, mostly dealing with personal self-improvement. For example, they included seminars on organizational skills (Managing Multiple Projects, Objectives and Deadlines; First Things First; and Fundamentals of Successful Project Management); seminars on communication skills (How to Design Attention Grabbing Brochures, Catalogues, Ads, Newsletters, and Reports; Assertive Communication Skills for Women; and How to Become a Better Communicator); seminars on creative thinking (How to Think Outside the Box); seminars on image (The Essentials of Credibility, Composure and Confidence); seminars marketed to women (The Women's Conference; and Conflict Management Skills for Women); seminars on inter-office and public relations skills (The Indispensable Assistant; The Essentials of Excellent Customer Service; and Coaching and Teambuilding Skills for Managers and Supervisors); and, seminars on computer programs and computer tasks (PC Troubleshooting; Using the Internet; Mastering Adobe Photoshop; and Conference for Windows Users).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 144
    In Interest of J.L., Minor Child.
    No. 22227.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2002.
    Decided Nov. 26, 2002.

      Elizabeth Rosenbaum, Sioux City, Iowa, Attorney for intervenors and appellants W.S. and S.S.
    Linda Kogel, Vermillion, South Dakota, Attorney for appellee mother.
    Phil Peterson, Beresford, South Dakota, Guardian Ad Litem, Attorney for J.L.
   PER CURIAM.

[¶ 1.] Intervenors W.S. and S.S. (foster parents) appeal a circuit court order transferring jurisdiction over this child abuse and neglect case to the Tribal Court of the Standing Rock Sioux Tribe of North and South Dakota. We affirm.

FACTS

[¶ 2.] J.L., the child at issue, was born on August 31, 2000. J.L. and his parents are Native American and J.L. and M.S., mother, are enrolled members of the Standing Rock Sioux Tribe.

[¶ 3.] In March 2001, mother was residing in Lantry, South Dakota on the Cheyenne River Sioux Reservation. On March 12, she contacted Catholic Family Services asking to place J.L. for adoption. Mother advised that she could not care for J.L. physically or emotionally and that she wanted an immediate placement for the child. On March 15, Catholic Family Services accepted J.L. into foster care and, on March 22, placed him in the physical custody of W.S. and S.S. of Vermillion as a pre-adoptive placement. W.S. and S.S. have been married over seven years and are licensed foster parents. S.S. is a kindergarten teacher and W.S. is a professor in the School of Education at the University of South Dakota.

[¶ 4.] On May 5, 2001, mother contacted Catholic Family Services saying that she wanted her son back. Mother continued to have contact with Catholic Family Services and arranged to pick J.L. up in Vermillion on Friday, May 25. However, that same day, the South Dakota Department of Social Services (DSS) received information- concerning mother’s care of J.L.’s three-year-old sister. Allegations were made that mother had placed the child in the physical custody of an aunt, that she had been abused while in the aunt’s care and that she had suffered a broken nose and two black eyes. It was further alleged that mother had retrieved the child from the aunt’s custody without obtaining any medical treatment for her.

[¶ 5.] On receipt of this information, DSS took emergency custody of J.L. Thus, mother was unable to meet with anyone from DSS or with foster parents or J.L. during her visit to Vermillion on May 25. A temporary custody hearing was held on Tuesday, May 29. Mother and H.L, father, participated by telephone. After the hearing, the circuit court entered an order granting temporary custody of J.L. to DSS and continuing his physical custody with foster parents. On May 30, the State filed a petition alleging J.L. to be an abused and neglected child. The first appearance on the petition was scheduled for July 27 and the Standing Rock Sioux Tribe was notified of the hearing.

[¶ 6.] After the May 29 hearing, DSS arranged for a social worker from Pierre to meet with mother and father and to conduct a home study. The study was completed 'in the middle of June and services'were recommended. However, DSS had difficulty maintaining contact with mother between June 25 and the end of August. . On August 31, mother contacted DSS to advise that she was going to have the tribe intervene in the matter. Due to mother’s sporadic contact, the first appearance scheduled for July was rescheduled for August and, again,, for November, In the interim, petitions to intervene were filed by the Standing Rock Sioux Tribe and by foster parents. The tribe also filed a petition to transfer jurisdiction over the case from circuit court to the Standing Rock Sioux Tribal Court pursuant to the ICWA.

[¶ 7.] The first appearance on the petition was held on November 9, 2001. A DSS report to the court at that time indicated that mother was living with her grandfather on the Standing Rock Reservation in Kenel, South Dakota and that she was on a waiting list for a two bedroom apartment that might be available by the end of the month. The report also indicated that father was no longer living with mother. The report recommended that mother complete parenting classes, alcohol and drug evaluations, a mental health-evaluation and that she find appropriate housing. At the close of the hearing, the circuit court granted the motions to intervene filed by the tribe and by foster parents. After the hearing, mother had her first visit with J.L. since May and a DSS worker later described the visit as “very appropriate.”

[¶8.] The hearing on the tribe’s petition to transfer jurisdiction was held on December 7, 2001. On December 13, the circuit court entered a detailed memorandum decision granting the motion to transfer. The memorandum instructed that, on receipt of a written confirmation from the tribal court that it would accept jurisdiction, the case would be transferred to the tribal court for further proceedings. A confirmation of the tribe’s acceptance of jurisdiction was filed on Decémber 19 and the circuit court entered its formal order transferring jurisdiction on December 20.' According to foster parents’ brief, it was also on December 19 that J.L. was removed from their home and placed directly into mother’s care. This appeal followed.

ISSUE

[¶ 9.] Did the circuit court err in transferring jurisdiction to the tribal court?

[¶ 10.] Foster parents argue that the circuit court erred in transferring jurisdiction of this matter to the Standing Rock Sioux Tribal Court. The standards for consideration of this issue have been outlined as foEows:

25 USC § 1911(a) of ICWA sets forth the jurisdictional framework for child custody proceedings and grants a tribe exclusive jurisdiction if: 1) the child is a ward of the tribal court, regardless of where the child resides or is domiciled; 2) the child resides within the reservation of his or her tribe; or 3) the child is domiciled within the reservation. Where § 1911(a) does not apply,' 25 USC § 1911(b) affords states and tribes concurrent but presumably tribal jurisdiction over child custody proceedings. In enacting the jurisdictional provisions of ICWA, “Congress intended that as a general principle, Indian tribes should have authority to determine custody issues involving Indian children.” In re Adoption of Halloway, 732 P.2d 962, 968 (Utah 1986).

People in Interest of G.R.F., 1997 SD 112, ¶ 14, 569 N.W.2d 29, 32 (emphasis added).

[¶ 11,] Here, the circuit court determined that 25 USC § 1911(a) does not apply and resolved the transfer of jurisdiction issue under the requirements of 25 USC-§ 1911(b). This determination is not questioned on appeal.

[¶ 12.] This Court has outlined the following analysis for transfer of jurisdiction issues under § 1911(b):

25 USC § 1911(b) (1989) provides in part:
In any State court proceeding for the foster care ■ placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe[.] (emphasis added.)
“[T]ransfer to the jurisdiction of the tribe is mandatory in the absence of good cause to the contrary.” Chester Cnty. Dept. of Social Servs. v. Coleman, 296 S.C. 355, 372 S.E.2d.912, 914 (Ct.App.1988).
Federal guidelines interpreting the Act define “good cause to the contrary” as including, but not limited to cases where (1) the proceeding is at an advanced stage when the petition to transfer is received and the petition is not promptly filed after receipt of notice; (2) the Indian child is over the age of twelve and objects to the transfer; (3) evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to witnesses and parties; (4) the parents of an Indian child over the age of five are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.... Case law also suggests that “good cause to the contrary” includes the absence of a tribal mechanism for handling child custody matters. The burden of establishing good cause to the contrary is on the party opposing transfer. The third element of the guidelines has been applied to deny transfer due to considerations of forum non conveniens, such as availability of witnesses and access to proof.
Coleman, 372 S.E.2d at 914-15 (citations omitted). See also State ex rel. J.J., 454 N.W.2d 317, 328-331 (S.D.1990).

People in Interests of M.C., 504 N.W.2d 598, 601 (S.D.1993).

[¶ 13.] This Court further held in M.C., supra, that a child is entitled to an eviden-tiary hearing to establish good cause not to transfer jurisdiction to the tribe. Id. The Court also held that the record must reflect that the trial court considered the various factors constituting good cause not to transfer jurisdiction and that it should make specific findings on all of the factors outlined above. Id at 601-602.

[¶ 14.] Although the circuit court did not enter formal findings and conclusions on the transfer issue in this case, such a failure is not necessarily fatal where the record leaves no doubt as to the basis of the court’s decision. See e.g., State v. Hartley, 326 N.W.2d 226, 228 (S.D.1982)(whether findings and conclusions are formally entered or orally made on the record, they must be such that there is no room for speculation and conjecture concerning what the trial court found or concluded). Here, the circuit court entered an extremely detailed seventeen page memorandum decision methodically analyzing each of the factors constituting good cause not to transfer jurisdiction under § 1911(b). There is no doubt as to the basis of the court’s decision.

[¶ 15.] With regard to the applicable factors, the circuit court found that the following favored a transfer of jurisdiction: 1) that although the tribe did not file a petition promptly after receiving notice of this case, the proceedings were not at an advanced stage when the petition was filed; 2) J.L. is not over twelve years of age so that guideline has no application; 3) J.L. is less than five years of age and his mother is available so that guideline has no application; 4) the Standing Rock Sioux Tribe in North and South Dakota does have a tribal court that could entertain this action.

[¶ 16.] The only factor that the circuit court found would support a denial of a transfer of jurisdiction was the “forum non conveniens factor.” This requires consideration of whether the evidence necessary to decide the case can be adequately presented to the tribal court without undue hardship to witnesses and parties. In that regard, the circuit court found:

[J.L.] has never resided on the Standing Rock Reservation. There are no witnesses whose testimony would be relevant at the adjudicatory stage (other than Mother) on the Standing Rock Res-' ervation. All of the witnesses to the abuse & neglect allegations would either be on the Cheyenne River Reservation or in Vermillion. For the dispositional phase, witnesses as to mother’s current situation and her efforts to establish a home where [J.L.] would be appropriately cared for would be on the Standing Rock Reservation. Witnesses as to [J.L.’s] current situation and what is necessary and appropriate for him would mostly be in Vermillion.
The Tribal Court in Ft. Yates, North Dakota is a long way[] from Vermillion; the witnesses who are familiar with [J.L.’s] life during the past six months would be required to leave South Dakota and go to North Dakota to participate in any further proceedings. This evidence could not be adequately presented to the Tribal Court without undue hardship to the parties and the witnesses. This guideline is in favor of this Court retaining jurisdiction.

[¶ 17.] Even this finding, however, is inconclusive. It concedes that witnesses will either have to travel from Vermillion to the tribal court or from locations on the Standing Rock and Cheyenne River Reservations to Vermillion and that one side or the other will be inconvenienced and face hardship in these proceedings. Thus, contrary to the circuit court’s conclusion, this is, at best, a neutral factor in evaluating the tribe’s petition to transfer jurisdiction. Under the settled law that § 1911(b) affords the tribes concurrent “but presumably tribal jurisdiction” in cases of this nature, a neutral factor provides no basis for denial of a tribe’s petition for a transfer of jurisdiction.

[¶ 18.] Based upon the applicable factors discussed above, the circuit court did not err in its ultimate determination granting the tribe’s petition to transfer jurisdiction. Foster parents argue that the overall best interests of the child override the foregoing factors. In that vein, they argue that the circuit court’s finding that it would be in J.L.’s best interests to remain with them provided adequate good cause to deny the petition to transfer jurisdiction.

[¶ 19.] There is authority for foster parents’ argument. In Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind.1988), the Indiana Supreme Court made the following observations as to the factor of the best interests of the child in a transfer request:

Section 1902 of the ICWA provides in part “that it is the policy of this Nation to protect the best interests of Indian children '....” The Montana Supreme Court, while considering the above-mentioned guidelines in determining the issue of good cause, has also considered the “best interests of the child,” and has concluded that transfer may be defeated by a “clear and convincing showing” by the State. In re M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1317. We agree that the best interests of the child are a valid consideration in determining the issue of good cause under § 1911(b).

[¶ 20.] Here, despite its ultimate holding that jurisdiction over this case should be transferred to the tribal court, the circuit court did enter the following findings determining that it would be in J.L.’s best interest to remain with foster parents:

The evidence shows that [foster parents] are good people who truly care for [J.L.] and have done whatever they could to improve his life. They have provided a good home, good medical care, and the love and affection that [J.L.] needed. [J.L.] has bonded with them and will suffer psychologically if he is removed. This Court believes that if [J.L.] was left with them, they would continue to provide this care and he would have many opportunities that otherwise will not be available to him. It would be in [J.L.’s] best interests to remain with [foster parents].

[¶21.] There is no dispute whatsoever over the capability of foster parents and the good care that they provided J.L. However, that a substitute parent might provide a child with good care or even better care than its natural parent is not an appropriate standard for determining the best interests of a child. As this Court said in Matter of B.E., 287 N.W.2d 91, 97 (S.D.1979), “State intervention for the best interest of the child cannot be used merely to insure that the child has a better home or someone better to care for it.”

[¶ 22.] The circuit court’s findings regarding J.L.’s bonding with foster parents and the potential for psychological damage on his removal from their care do raise legitimate concerns over his best interests. Unfortunately, these concerns are present in every abuse and neglect case where a child is entrusted to foster care as the extended legal process necessary to protect the rights of all parties unfolds. Moreover, we cannot ignore the reality at this juncture that J.L. was removed from foster parents’ care on entry of the circuit court’s transfer order and has now been back in the care of his own mother for approximately nine months. Presumably, uprooting him from her care and transferring him back to foster parents at this point would also have some psychological effect on the child.

[¶ 23.] Another important consideration in evaluating the best interests of the child in this particular case is the point at which we find ourselves in the abuse and neglect process. Well over a year after DSS’s first intervention, there has yet to be any adjudication of abuse or neglect of J.L. Were we to reverse the circuit court’s transfer order, it would be necessary for that court to reacquire legal and personal jurisdiction over J.L. and to conduct an adjudicatory hearing. Based upon the record before us, we question whether an adjudication of abuse and neglect could be sustained. The DSS worker who testified at the transfer hearing conceded that the allegations under which DSS originally intervened in this case were not true, ie., the abuse of J.L.’s older sister by his aunt. Thus, we perceive no grounds to sustain an adjudication. Even if an adjudication could be sustained, DSS would be required to make active efforts to work with mother to prevent the breakup of the family. People in Interest of B.S., 1997 SD 86, ¶ 11, 566 N.W.2d 446, 448 (citing People in Interest of A.R.P., 519 N.W.2d 56, 60 (S.D.1994)(quoting 25 USC § 1912(d))). Only on the failure of these efforts could matters proceed to a disposition terminating mother’s parental rights and to a possible permanent placement of the child with foster parents. Id. It is not difficult to envision these steps adding further instability to J.L.’s young life for an even more extended period time. Further instability and delay are clearly not in J.L.’s best interests. See Matter of R.P., 498 N.W.2d 364, 368 (S.D.1993)(best interests of child require that some certitude and stability enter child’s life.)

[¶ 24.] For these reasons, we hold that J.L’s best interests are better served by affirming the circuit court’s transfer order and by permitting the appropriate tribal authorities to continue to fulfill their responsibility to act on J.L.’s behalf and to protect his best interests.

[¶ 25.] Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 27.] MEIERHENRY, Justice, not having been a member of the Court at the time this was submitted to the Court, did not participate.

      . Section 1913(c) of the Indian Child Welfare Act (ICWA) permits a parent to withdraw consent for adoption of a child at any time prior to entry of a final decree of adoption. 25 USC § 1913(c).

      . Nevertheless, we reiterate our preference for the entry of formal written findings of fact and conclusions of law whenever they are required.

      . While we recognize mother's partial fault in this delay, it does not change the status of the case.


text:
    2002 SD 148
    STATE of South Dakota, Plaintiff and Appellee, v. Larry DOWNING, Defendant and Appellant.
    No. 22148.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Nov. 26, 2002.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Office of Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Larry Downing appeals his conviction for grand theft. We affirm.

FACTS

[¶ 2.1 On May 17, 2001, Downing was apprehended after leaving a Rapid City department store with a DVD player concealed in his shopping cart. He was later charged in an information with one count of grand theft of property with a value exceeding five hundred dollars. See SDCL 22-30A-1; 22-30A-17G).

[¶ 3.] Downing’s jury trial was on October 2, 2001. During trial, the State presented three witnesses who gave testimony bearing on the value of the DVD player stolen by Downing. The first witness, the senior employee in the department store’s electronics department, testified as follows:

Q And how much were you selling that DVD player for?
MR. ANDERSEN [defense counsel]: Objection, your Honor. May we approach?
THE COURT: You may.
THE COURT: Mr. Andersen, do you wish to object?
MR. ANDERSEN: Yes, your Honor.
THE COURT: Grounds?
MR. ANDERSEN: That the best — the best evidence rule would apply in this case and also the price is not relevant as to value.
THE COURT: Overruled.
Q (By Mr. Harris [the prosecutor]) And how much were you selling that for?
A 529.99.
Q On May 17, 2001?
A That’s correct.
Q Was that displayed anywhere?
A It’s on the shelf in the electronics department.
MR. ANDERSEN: I would renew my objection, your Honor, based—
THE COURT: Your objection is preserved but overruled.

[¶ 4.] On cross-examination, the senior employee conceded that his duties did not include ordering or inventory control or pricing items in the electronics department. Rather, he testified that prices were established by shelf labels and signs issued by the company, that he had no control over the price of items and that his knowledge of the price of the DVD player came from reading the labels and signs provided by the company. The employee further testified that, at the time of the theft, the DVD players were a recent arrival and that none had been sold before the theft.

[¶ 5.] The State next presented testimony from the department store’s human resources manager. The human resources manager formerly worked as a loss prevention officer and as head of store security. On redirect examination, the human resources manager testified that, on the day of the theft, the DVD player stolen by Downing was selling for “approximately 525 to $529.”

[¶ 6.] The third witness presented by the State was the store’s loss prevention officer. On cross-examination, the loss prevention officer testified that, as of the date of Downing’s theft, the store had received three DVD players of the type stolen by Downing and that none had been sold as of that date.

[¶ 7.] After presentation of all of its witnesses, the State rested and defense counsel indicated he had no witnesses to offer. Proceedings continued outside the presence of the jury. Defense counsel moved to strike the testimony on the price of the DVD player on the grounds that it was hearsay, that the best evidence rule required production of the signs on which the testimony was based and that price was not relevant evidence as to the value of the DVD player. The trial court denied the motion to strike and defense counsel moved for a judgment of acquittal on similar grounds. The acquittal motion was also denied on the basis that there was sufficient evidence to establish the value of the DVD player. The trial court then proceeded to settle jury instructions. Defense counsel proposed an instruction that price tags alone do not sufficiently prove the market value of merchandise and the trial court rejected the instruction.

[¶ 8.] After settlement of the jury instructions, the trial resumed in the presence of the jury with the reading of the instructions and closing arguments. The jury retired for deliberations and later returned a verdict finding Downing guilty of grand theft. Downing was sentenced to three years in the penitentiary and this appeal followed.

ISSUE ONE

[¶ 9.] Did the trial court abuse its discretion in admitting the store employees’ testimony as to the sale price of the DVD player?

[¶ 10.] Downing argues that the trial court abused its discretion in admitting the testimony of the senior employee in the electronics department to establish the sale price of the DVD player. Trial courts retain broad discretion in ruling on the admissibility of testimony and decisions to admit or exclude testimony will not be reversed absent a clear showing of abuse of discretion. See State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414. “When a trial court misapplies a rule of evidence, as opposed to merely allowing or refusing questionable evidence, it abuses its discretion.” Id.

[¶ 11.] Downing contends that the trial court abused its discretion in admitting the senior employee’s testimony because it was based upon price labels and signs provided by the company and the labels and signs themselves should have been admitted as the best evidence of price. In support of his argument, Downing cites the best evidence rule codified in SDCL 19-18-2 (FedREvid 1002): “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in chapters 19-9 to 19-18, inclusive, or by rules adopted by the Supreme Court of this state or by statute.”

[¶ 12.] Downing’s argument represents a common misunderstanding of the best evidence rule mentioned by this Court in State v. Lang, 354 N.W.2d 723, 725 (S.D.1984):

Appellants simply misconstrue the purpose and effect of the best evidence rule. The rule does not set up an order of preferred admissibility, which must be followed to prove any fact. It is, rather, a rule applicable only when one seeks to prove the contents of documents or recordings. FedREvid 1002. (quoting United States v. Gonzales-Benitez, 537 F.2d 1051, 1053 (9thCir.1976)).

“The [best evidence] rule is inapplicable when content is not at issue.” 6 Jack B. Weinstein et al., Weinstein’s Federal Evidence § 1002.05[1] (2d ed 2002). Thus, in Jackson v. Crews, 873 F.2d 1105, 1110 (8thCir.1989), the United States Court of Appeals for the Eighth Circuit held that the district court did not err in allowing a party to question one of his witnesses about the contents of a flyer without producing the flyer as the best evidence of its contents. As to that issue, the Court of Appeals observed that the best evidence rule “only applies if the party offering the evidence is seeking to prove the contents of the writing. In the instant case [the party] was not trying to prove the contents of the flyer. Therefore, [the best evidence rule] does not apply.” Jackson, 873 F.2d at 1110 (citations omitted).

[¶ 13.] Here, the State was not trying to prove the contents of the department store’s price labels and signs. The content of the labels and signs was not in dispute. Rather, the State was attempting to show how the testifying employee learned of the price of the DVD player. The best evidence rule was, therefore, inapplicable, and the trial court committed no abuse of discretion in overruling Downing’s objections to the. employee’s testimony on that foundation.

[¶ 14.] Downing also argues that the trial court abused its discretion in admit-‘ ting testimony as to the sale price of the DVD player because price is irrelevant in' establishing value for purposes of a grand theft prosecution. In that vein, Downing points out that the testifying store employees admitted that no DVD players were actually sold by the time of the theft at the price indicated on the labels and signs.

[¶ 15.] With regard to value as an element in theft or larceny prosecutions, this Court has held that:

It is well settled that when a statute delineates a specific dollar amount as the differentiation between petit and grand larceny, proof of.the value of the item(s) stolen in excess of the statutory amount is an essential element of the crime[.] ....
It is also well settled that the determination of said value is strictly within the province of the jury....
To aid the jury in’ determining value, the courts have offered various tests for the determination of value as used in statutes distinguishing between petit and grand larceny and other similar statutes involving theft of property. The most widely accepted test is the “fair market value” test. This test provides that the value to be proved is the fair market value at the time and place of the theft.

State v. Jacquith, 272 N.W.2d 90, 92 (S.D. 1978) (citations omitted).

[¶ 16.] In support of his argument over price as evidence of value, Downing relies on the Nebraska Supreme Court’s decision in State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992). Garza involved the theft of several articles of clothing from a department store. To establish the value of the clothing in a prosecution for felony shoplifting, the state offered testimony from the department store’s assistant manager based upon the price or sales tag for each item taken by the defendant. The defendant offered no evidence and was convicted of the felony offense. On appeal, the Nebraska court identified a distinction between price and value and held that price tags alone are insufficient to establish the value of property in a theft prosecution. The Nebraska court further held that testimony directed toward price tags on articles taken is irrelevant to the issue of value and should be excluded. Garza, 487 N.W.2d at 557. Garza has subsequently been interpreted by the Nebraska courts as holding that, “value is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft.” State v. Mohr, 10 Neb.App. 442, 632 N.W.2d 382, 388 (2001)(emphasis original).

[¶ 17.] Notwithstanding the Nebraska Supreme Court’s apparent condemnation of the admission of price as evidence of value, the very same court also acknowledged in Garza that:

This is not to say or be construed as saying, however, that a price tag, reflecting a seller’s expression of the price for a sale, is never evidence of value. Evidence of price, when determined by and reflective of current market conditions for the sale of an item, may be admissible on the issue of value.

Garza, 487 N.W.2d at 557. Other courts have taken an even more favorable view of the role of price in establishing value. A good analysis of the issue appears in People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959) where the New York Court of Appeals considered whether wholesale value or retail value should be the standard for determining the market value of merchandise stolen from a department store. The New York court concluded:

market value, as the term is used in section 1305, denotes not the value of the goods in the market in which the owner had purchased them or in which he could replace them, but the value in the market in which the goods were being traded, namely, the price at which they would probably have been sold in the regular course of business at the time when and place where they were stolen. And so, we note, the courts have held in a number of other jurisdictions where market value is likewise the criterion for determining the value of stolen property.
Where, then, the property is stolen from a department store, the price at which it is there listed ordinarily reflects its market value. We do not, of course, mean to imply that such price is necessarily conclusive. The vital finding which the jury must make is the price at which the property would have been sold if it had not been stolen, and any evidence bearing on that question may properly be considered. It would be open to the accused to show, for instance, that the list price was much higher than the price being paid for similar merchandise in the vicinity, for such evidence bears on whether the goods would actually have found buyers at list price even in the store from which they had been taken.
In the case before us, however, no such qualifying circumstances were presented, and it would have been sufficient had the trial judge simply charged the jury to consider the prices at which the stolen garments were listed for sale.

Irrizari 182 N.Y.S.2d 361, 156 N.E.2d at 71(citations omitted). See also Emshwiller v. State, 462 So.2d 457, 458 (Fla.1985)(jury instruction in grand theft case equating market value with retail price upheld); State v. King, 164 N.J.Super. 330, 396 A.2d 354, 356 (N.J.Super.Ct.App.Div.l978)(proof of actual sales price adequate to support prima facie case of larceny of property valued in excess of $200); Norris v. State, 475 S.W.2d 553, 555 (TexCrimApp 1971)(evidence of retail price sufficient circumstantial evidence of value, where un-contradicted, to support larceny conviction).

[¶ 18.] The Minnesota Supreme Court has endorsed a view of the role of price in establishing value very similar to that followed by the New York court in Irrizari supra. In State v. McDonald, 312 Minn. 320, 251 N.W.2d 705, 707 (1977), the court observed:

The value of a mass-marketed item taken from a retail store is not necessarily the value of the item in the market in which the owner of the store purchased it but the value in the market in which the item was being sold. Although testimony as. to the price on the price tag ordinarily would be sufficient to justify a finding that that was the retail market value of the item taken, it is not conclusive, for the price charged by the store from which the item is taken may not accurately reflect the market value of the item. A defendant is free to introduce direct and circumstantial evidence bearing on the value of the item in the retail market and thus, as here, may call other witnesses to testify that other stores sell the item for less; or he may introduce evidence suggesting that the item does not have much of a market any more as, for example, where an item has been on the shelf unsold for a long time, (citations omitted).

[¶ 19.] These authorities support the general view that,

[e]vidence of the retail price of stolen goods has been held to be competent evidence of market value, especially where the items were being sold over the counter on a more-or-less daily basis and there was- nothing to indicate that the retail price was higher than the true market value.

50 AmJur2d Larceny § 152 (2002). This view is far more consistent than Garza with the prior holdings of this Court that, “opinion testimony of the owner of stolen goods, not otherwise an expert, is admissible to establish the value of said stolen goods,” and is, “sufficient without more to support the jury’s determination of value.” State v. Davis, 401 N.W.2d 721, 723 (S.D.1987)(citing United States v. McGinnis, 783 F.2d 755 (8thCir.l986)). Accord State v. Iron Necklace, 430 N.W.2d 66, 81 (S.D.1988). Certainly, a price tag is representative of a store owner’s opinion as to the value of goods offered for sale and, like any other expression of such opinion, it should be admissible to establish the value of stolen goods and to support a jury’s determination of value. That is particularly true in a case such as this where there is nothing to indicate that the retail price of the item taken was higher than the true market value.

. [¶ 20.] Based upon the foregoing, the trial court committed no abuse of discretion in admitting the testimony of the store employees as to the price of the DVD player stolen by Downing.

ISSUE TWO

[¶ 21.] Did the trial court err in denying Downing’s motion for a judgment of acquittal?

[¶ 22.] Downing argues that the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence to establish the value of the DVD player stolen by him.

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

State v. Verhoef, 2001 SD 58, ¶22, 627 N.W.2d 437, 442 (citations omitted)(quoting State v. Karlen, 1999 SD 12, ¶ 49, 589 N.W.2d 594, 605).

[¶ 23.] In support of his contentions as to the denial of his acquittal motion, Downing relies on the same arguments over price as evidence of value as are set forth under Issue One. For the same reasons those arguments failed there, they also fail here. Under the authorities cited above, price can provide adequate evidence of value to sustain a grand theft prosecution, particularly in the absence of any contrary evidence of value. See e.g. Irrizari, supra; McDonald, supra. Thus, the trial court did not err in denying Downing’s motion for a judgment of acquittal based upon insufficiency of the evidence to establish value.

ISSUE THREE

[¶ 24.] Did the trial court abuse its discretion in refusing Downing’s proposed jury instruction regarding price tags as evidence of value?

[¶ 25.] As his last issue, Downing argues that the trial court abused its discretion in refusing the following jury instruction he proposed on price tags as evidence of value:

Price tags alone do not sufficiently prove value of merchandise. A price tag expresses merely the amount at which a seller offers an article for sale, a sum the seller hopes to obtain, and does not necessarily indicate the amount obtainable in the market through payment for the article offered for sale.

[¶ 26.] This Court’s standard of review for the refusal of a proposed jury instruction is well settled:

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.” Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. 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. Further, to reverse a conviction for failure to give a proposed instruction, the defendant must show that the jury would have returned a different verdict if the proposed instruction was given. Absent such a showing, the trial court will not be reversed.

State v. Webster, 2001 SD 141, ¶7, 637 N.W.2d 392, 394 (citations omitted).

[¶ 27.] Downing’s proposed instruction was adapted from the Nebraska Court of-Appeal’s decision in State v. Ybarra, 9.Neb.App. 230, 609 N.W.2d 696 (2000) which was premised on the Nebraska Supreme Court’s decision in Garza, supra. For the reasons previously discussed, we reject Garza as representing a correct statement of the law in South Dakota on proof of value in a grand theft prosecution. It is axiomatic that there can be no abuse of discretion in the refusal of a proposed jury instruction that does not represent a correct statement of the law. See e.g. State v. Rhines, 1996 SD 55, ¶ 111, 548 N.W.2d 415, 443 (to warrant reversal, refusal of instruction must be refusal of an “appropriate instruction” and refusal must unfairly prejudice defendant).

[¶ 28.] Jury instructions are adequate when they properly state the applicable law and inform the jury. Webster, supra.Here, the jury was given the following instruction as to proof of value:

When the value of property alleged to have been taken by theft must be determined, the reasonable and fair market value at the time and in the locality of the theft shall be the test. Fair market value is the highest price, estimated in terms of money, for which the property would have sold in the open market at the time and in that locality, if the owner was desirous of selling, but under no urgent necessity of doing so, if the buyer was desirous of buying but under no urgent necessity of doing so, if the seller had a reasonable time within which to find a purchaser, and if the buyer had knowledge of the character of the property and of the use to which it might be put.

This instruction states, “in essence, the ‘fair market value test,’ ” this Court approved in Jacquith, 272 N.W.2d at 93, as the appropriate test for the value of stolen property in a grand larceny prosecution. As such, it correctly states the' applicable law in South Dakota on this topic. Therefore, the trial court committed no abuse of discretion in refusing Downing’s proposed jury instruction on the same topic that was premised on conflicting law from the State of Nebraska.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating. .

[¶ 31.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . SDCL 22-30A-1 provides:
      Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft.
      SDCL 22-30A-17(l) provides:
      Theft is grand theft, if:
      (1) The value of the property stolen exceeds five hundred dollars;
      Theft in all other cases is petty theft. Grand theft is a Class 4 felony.
      A Class 4 felony is punishable by up to ten years in prison and/or a fine of up to ten thousand dollars. SDCL 22-6-1(6).

      . Downing also cites this Court's decision in State v. Larkin, 87 S.D. 61, 202 N.W.2d 862 (1972) where the trial court struck testimony concerning the value of some stolen merchandise from the record because it was based upon a store employee’s reading from the price tags attached to the items. Larkin, however, provides no guidance on this issue as the propriety of the trial court's ruling was not considered. Rather, on the appellant's sufficiency of the evidence argument, this Court looked to the other evidence of value contained in the record and found sufficient evidence to sustain the appellant's grand larceny conviction.


author: TIEDE, Circuit Judge. AMUNDSON, Retired Justice

text:
    2002 SD 152
    Robert L. CHAVIS, Individually and in his capacity as the Yankton County State’s Attorney, Plaintiff and Appellant, v. YANKTON COUNTY, Yankton, South Dakota, Defendant and Appellee.
    No. 22213.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2002.
    Decided Dec. 4, 2002.

      Robert L. Chavis, Yankton, South Dakota, Attorney for plaintiff and appellant.
    Richard L. Travis, Sioux Falls, South Dakota, Attorney for defendant and appel-lee.
   TIEDE, Circuit Judge.

[¶ 1.] Yankton County Commission (Yankton County) passed a resolution which provided that as of January 1, 2000, all monies payable from other counties for legal fees incurred for representation by the Yankton County State’s Attorney for involuntary mental illness commitment proceedings would be billed by the county auditor’s office and received into the county general fund. Robert L. Chavis (Chav-is), individually and in his capacity as the Yankton County State’s Attorney, appealed Yankton County’s passing of the resolution to the circuit court. The circuit court found that the resolution was valid and binding. Chavis has appealed. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The South Dakota Human Services Center (Center) is located in Yankton County, South Dakota. An individual who is involuntarily committed to the Center is entitled to an involuntary commitment hearing and periodic review hearings until such time as the individual is discharged from the Center.

[¶ 3.] SDCL 27A-11A-4 provides that the state’s attorney for the county in which the proceedings are held shall represent the petitioner. The statute further provides that “[t]he county ultimately shown to be the county of residence shall reimburse the county in which the proceeding is held for any reasonable cost of such representation.” SDCL 27A-11A-4.

[¶ 4.] Chavis is the full-time state’s attorney for Yankton County. He is assisted by a full-time deputy state’s attorney. Yankton County establishes the salaries of both Chavis and the deputy state’s attorney. >On August 15, 2000, Yankton County passed, and thereafter published, a resolution which provided:

[A]s of January 1, 2000 all monies payable from other counties for legal fees incurred for representation by the Yank-ton County States [sic] Attorney’s office for involuntary mental illness commitment proceedings be billed by the Auditor’s office and receipted in to [sic] the Yankton County general fund.

[¶ 5.] Prior to this resolution, the Yankton County State’s Attorney and various Yankton County Deputy State’s Attorneys appearing at involuntary commitment hearings billed the county of residence of the individual involved in the proceeding, were paid directly by that county, and retained such compensation rather than remitting it to Yankton County. This compensation was in addition to any compensation paid to the state’s attorney or any deputy state’s attorney by Yankton County. •

[¶ 6.] Chavis, individually and in his capacity as the Yankton County State’s Attorney, appealed the resolution passed by Yankton County to the circuit court. A court trial was held on October 1, 2001. The circuit court entered its findings of fact and conclusions of law dated December 10, 2001. The circuit court found that the Yankton County State’s Attorney has a statutory duty to represent the petitioner in involuntary commitment proceedings held in Yankton County. It concluded that the resolution was valid and binding and that Yankton County was entitled to reimbursement from the county of residence of the individual for any reasonable cost of said representation. Chavis claims the resolution is illegal.

STANDARD OF REVIEW

[¶ 7.] “SDCL 7-8-30 provides [that] an appeal from a decision of a county commission shall be heard and determined by the circuit court de novo.” Coyote Flats v. Sanborn County Com’n, 1999 SD 87, ¶ 7, 596 N.W.2d 347, 349. While the circuit court’s review of the agency decision is de novo, we have cautioned the courts not to sit as a “ ‘one man Board of Adjustment.’ ” See In re Conditional Use Permit Denied to Meier, 2000 SD 80, ¶ 22, 613 N.W.2d 523, 530. “Rather, the circuit court must determine whether the county commission’s decision was ‘arbitrary or capricious,’ in which case the court ‘should reverse the decision and remand to the Board for further proceedings.’ ” In re Approval of Frawley Development, 2002 SD 2, ¶ 7, 638 N.W.2d 552, 554 (quoting In re Conditional Use Permit Denied to Meier, 2000 SD 80 at ¶ 22, 613 N.W.2d at 529). “Conversely, if the court finds no evidence that the county commission made its decision with ‘personal, selfish or fraudulent motives, or false information,’ the circuit court must affirm the commission’s decision.” Frawley Development, 2002 SD 2 at ¶ 7, 638 N.W.2d at 554 (quoting Coyote Flats, 1999 SD 87 at ¶ 16, 596 N.W.2d at 351-52).

[¶ 8.] Likewise, “[t]his Court is not warranted in directing the manner in which the Commission should exercise its legal discretion.” Coyote Flats, 1999 SD 87 at ¶ 42, 596 N.W.2d at 356-357 (citations omitted). In our review of the county commission’s decision after an appeal to the circuit court, “ ‘we apply the clearly erroneous standard to factual findings, but accord no deference to the legal conclusions of the circuit court’ ” Id. at ¶ 7, 596 N.W.2d at 349 (quoting Gregoire v. Iverson, 1996 SD 77, ¶ 14, 551 N.W.2d 568, 570) (citing Tri County Landfill Ass’n v. Brule County, 535 N.W.2d 760, 763 (S.D. 1995)).

ANALYSIS AND DECISION ISSUE

[¶ 9.] Whether the resolution adopted by Yankton County was arbitrary and capricious.

[¶ 10.] An individual who is involuntarily committed is statutorily entitled to a hearing before the county board of mental illness pursuant to SDCL eh 27A-11A et seq. In addition, an individual is entitled to periodic review hearings until such time as he or she is discharged. SDCL 27A-11A-7 provides that counsel be appointed to represent the mentally ill person at such hearings. The county of residence of the person represented shall pay the counsel appointed by the county board or the court. SDCL 27A-11A-12.

[¶ 11.] The state’s attorney of the county in which the commitment or review proceeding is held is statutorily required to appear and represent the petitioner in the proceedings. SDCL 27A-11A-4 provides:

In any proceeding for involuntary commitment, review or detention, or in any proceeding challenging commitment or detention, the state’s attorney for the county in which the proceeding is held shall represent the petitioner and shall defend all challenges to commitment or detention. The county ultimately shoivn to be the county of residence shall reimburse the county in which the 'proceeding is held for any reasonable cost of such representation.
No lien may be placed against the person for the costs incurred in any proceeding for involuntary commitment, review, or detention, (emphasis added).

[¶ 12.] A large number of hearings are held in Yankton County due to the location of the Center in Yankton County. Chavis, as Yankton County State’s Attorney, has a statutory duty pursuant to SDCL 27A-11A-4 to represent the petitioner at those hearings.

[¶ 13.] Chavis is paid a salary by Yank-ton County for performing his duties as a full-time state’s attorney. As a full-time state’s attorney for Yankton County, Chav-is is prohibited from acting as “counsel or attorney in any action, civil or criminal, in the courts of this state except when acting on behalf of his county or the state of South Dakota.” SDCL 7-16-19. SDCL 7-16-18 provides:

Other than fees payable for child support enforcement services upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners, fees payable upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners under the Violence Against Women Act, 42 USC 3796gg et seq. as of January 1, 1997, and fees payable under contract for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6 or fees payable for representation of a board or commission acting pursuant to chapter 46A-10A, the state’s attorney may not receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it is the state’s attorney’s official duty to attend, nor be concerned as attorney or counselor for either party, other than for the state or county, in any civil action depending on the same state of facts upon which any criminal prosecution commenced, but undetermined, shall depend. No state’s attorney, while in office, is eligible to hold any judicial office. A full-time state’s attorney, as defined by § 7-16-19, is not entitled to receive the fees payable for child support enforcement services or services under the. Violence Against Women Act provided herein, nor is a full-time state’s attorney entitled to extra compensation for representing the county or its officers in civil cases and administrative proceedings outside the county provided herein or for representing a board or commission acting on drainage matters, (emphasis added).

Further, SDCL 7-16-23 provides:

Other than fees for child support enforcement services made upon the request of the Department of Social Services to a state’s attorney under a cooperative agreement with the board of county commissioners, fees payable upon request of the Department of Social Services under a cooperative agreement with the board of county commissioners under the Violence Against Women Act, 42 USC 3796gg et seq. as of January 1, 1997, and fees payable under contract for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6, a board of county commissioners may not give or pay any fees or costs to a state’s attorney as part of a salary or in addition to a salary. However, each board shall participate in the costs of the prosecution and enforcement by the state’s attorney of support obligations against any responsible parent, whether of a civil or criminal nature, on a fee for service basis with the Department of Social Services. The fee is paid to the state’s attorney in addition to any other compensation of the state’s attorney for the performance of other public duties. A full-time state’s attorney, as defined by § 7-16-19, is not entitled to receive the fees payable for child support enforcement services or services under the Violence Against Women Act authorized by this section nor is a full-time state’s attorney entitled to extra compensation for representation of the county or its officers in civil cases and administrative proceedings outside the county pursuant to § 7-16-6. (emphasis added).

Where the legislature intended that state’s attorneys be able to receive a fee in addition to their salary from the county, the legislature has clearly provided for such a fee. See, e.g., SDCL 7-16-18 and 7-16-23.

[¶ 14.] “When a statute’s language is clear, certain, and unambiguous, our function confines us to declare its meaning as plainly expressed.” Bergee v. Bd. of Pardons and Paroles, 2000 SD 35, ¶ 11, 608 N.W.2d 636, 641 (citing US West Communications, Inc. v. Public Utilities Comm’n, 505 N.W.2d 115, 123 (S.D.1993)). SDCL 27A-11A-4 clearly requires that the state’s attorney for the county in which the proceeding is held shall represent the petitioner and shall defend any challenges to the commitment or detention. It further states that “[t]he county ultimately shown to be the county of residence shall reimburse the county in which the proceeding is held for any reasonable cost of such representation.” SDCL 27A-11A-4 (emphasis added). The statute provides that the county, not the state’s attorney, shall be reimbursed by the county of residence.

[¶ 15.] There are no provisions in SDCL 7-16-18 and 7-16-23 which authorize Yankton County to pay additional fees or costs to the state’s attorney for carrying out his statutory duty to represent the petitioner in commitment proceedings. Even if such statutory authority arguably existed (see, e.g. SDCL 7-8-20(11)), there is no evidence that Yankton County authorized any compensation to Chavis in addition to his salary. Chavis does not cite to any statutory authority or resolution of Yankton County to support his claim that reimbursement from the county of residence is to be paid to the state’s attorney as additional compensation. Chavis also fails to cite to any statutory authority authorizing the state’s attorney to directly bill the county of residence for representation at commitment proceedings.

[¶ 16.] Full-time state’s attorneys are paid a salary by the county for carrying out all of their duties. If the legislature had intended the state’s attorney to receive compensation directly from the county of residence, it could have said so in SDCL 7-16-23 or otherwise. If Chavis feels he is being undercompensated by his salary as Yankton County state’s attorney, that is a separate issue which he will need to address with the county. Pursuant to SDCL 27A-11A-4, Yankton County is entitled to receive reimbursement from the county of residence for any reasonable costs of representation of the petitioner at commitment proceedings. The resolution of Yankton County is not arbitrary and capricious. Therefore, we affirm the circuit court.

[¶ 17.] Chavis raises other issues in his brief, including claims of violation of substantive due process, unjust enrichment and involuntary servitude. Based on the above analysis, we need not address them as they “ ‘lack sufficient merit or importance to warrant individual attention.’ ” Parker v. Casa del Rey-Rapid City, Inc., 2002 SD 29, ¶ 27, 641 N.W.2d 112, 122 (quoting Mattson v. Rachetto, 1999 SD 51, ¶ 7 n. 4, 591 N.W.2d 814, 816 n. 4).

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, concurring.

[¶ 20.] AMUNDSON, Retired Justice, concurring in result.

[¶ 21.] TIEDE, Circuit Judge, for ZINTER, Justice, disqualified.

[¶ 22.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

AMUNDSON, Retired Justice

(concurring in result).

[¶ 23.] I concur in the result because I would sua sponte find there is no jurisdiction.

This court generally has a duty to determine whether the trial court has jurisdiction over a matter as a condition precedent to its right to decide the issues involved. Long v. Knight Const. Co., Inc., 262 N.W.2d 207 (S.D.1978); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962). Even if none of the parties have challenged jurisdiction, this court will, sua sponte, determine whether the lower court had jurisdiction.

Hardy v. West Central Sch. Dist., 478 N.W.2d 832 (S.D.1991) (citations omitted).

[¶ 24.] There can be no jurisdiction as Mr. Chavis is not an aggrieved party.

[W]e think [‘any person aggrieved’] can only include such persons when they are able affirmatively to show that they are ‘aggrieved’ in the sense that [ ... ] they suffer the denial of some claim of right either of person or property....”

Tri County Landfill Association, Inc., v. Brule County, 535 N.W.2d 760, 763 (S.D.1995)(internal citations omitted)(ellipses and brackets in original). Chavis has no personal interest in the commissioners’ decision regarding the funds received from other counties. As the majority says, Chavis is the full-time state’s attorney for Yankton County. Chavis has a duty to represent the petitioner in all involuntary commitment proceedings and to defend all challenges to such. Chavis has made no showing of entitlement to the proceeds and therefore is not an “aggrieved party” under SDCL 7-8-27.

       We question whether Chavis has standing to appeal. This Court has previously held that SDCL 7-8-27 provides for a right of appeal only by persons who suffer personal or individual grievances, rather than grievances suffered by taxpayers or the public generally. Tri County Landfill v. Brule County, 535 N.W.2d 760, 763 (S.D.1995) (quoting Simpson v. Tobin, 367 N.W.2d 757, 760 (S.D.1985) (citations omitted)). An " 'appellant must show a personal, peculiar or individual interest in the decision of the board to maintain his right to appeal.’ ” Tri-State Milling Co. v. Bd. of County Commissioners, 75 S.D. 466, 467, 68 N.W.2d 104, 105 (1955) (quoting Holmes v. Miller, 71 S.D. 258, 262, 23 N.W.2d 794, 796 (1946)). The challenged ordinance was not directed to the compensation of Chavis as fixed by Yankton County. Rather the ordinance was addressed to what would happen to the monies received from other counties as reimbursement for reasonable costs incurred by Yankton County. However, since the issue of standing was not raised by Yankton County, we will proceed to address the merits of the appeal.