author: KONENKAMP, Justice.

text:
    2005 SD 45
    David ELKJER and Cindi Elkjer, Plaintiffs and Appellants, v. CITY OF RAPID CITY, South Dakota, a municipal corporation, Defendant and Appellee.
    No. 23341.
    Supreme Court of South Dakota.
    Argued on Feb. 16, 2005.
    Decided March 30, 2005.

      Larry M. Von Wald of Beardsley, Jensen and Von Wald, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
    Joel P. Landeen, Assistant City Attorney, Jason E. Green, City Attorney, City Attorney’s Office, Rapid City, South Dakota, for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Under a Rapid City ordinance, homeowners are responsible for damage to their property caused by service lines extending from the City’s water main to the water stop on the homeowner’s property. When the homeowners here sued the City to recover for damage caused by a broken service line, the circuit court granted the City’s motion to dismiss for failure to state a claim upon which relief can be granted. On appeal, plaintiffs contend that the City’s ordinance violates the open courts provision of the South Dakota Constitution as an unwarranted extension of sovereign immunity on the City’s proprietary function of operating a waterworks system. Because we conclude that the Legislature has not granted to cities the power to disclaim all liability for water service lines, we reverse the dismissal and decline to reach the constitutional question.

Background

[¶ 2.] Plaintiffs, David and Cindi Elkjer, are residents of the Parkridge area of Rapid City, South Dakota. Their home is connected to the City’s waterworks system. On December 26, 2003, a service line failed, causing a large volume of water to escape. The broken line was underneath the city street between the main water line and the curb stop. When the line broke, water flooded plaintiffs’ basement causing damage. This service line was constructed of polybutelene plastic, known as Poly-B.

[¶ 3.] The City did not install the service line or require that it be constructed of Poly-B. Service lines from the City’s water main to the homes in the Parkridge area were installed by homebuilders and developers. However, builders were required to comply with City regulations on how to properly install these lines and on what materials were acceptable for use. One of the materials the City authorized was Poly-B. Many builders chose to use Poly-B to tap into the water main.

[¶ 4.] After becoming aware of nationwide problems with Poly-B, the City stopped approving its use for water service lines. In 1991, the City began a policy of repairing and replacing all defective Poly-B water service lines on a pro-rata basis. In 2001, the City amended its policy to “repair and replace all leaky polybutelene service lines from the main to the curb stop on a 100 percent basis.” Prom 1991 to 2003, the City replaced 370 Poly-B lines. However, the City “assumefd] no liability for any other damage caused to real or personal property as a result of the breakage of any water line but only for the costs associated with [the] replacement of such line.”

[¶ 5.] Plaintiffs brought suit against the City in 2004 to recover for the damage to their property. They alleged that the conduct of the City in operating and maintaining its waterworks was both a negligent and an intentional tort. The City responded with a motion to dismiss for failure to state a claim under SDCL 15 — 6—12(b)(5). The circuit court granted the motion. On appeal, plaintiffs ask “[w]hether City Ordinance 13.04.420 and City Policy PW 101001-12 violated the ‘open courts’ provision of the South Dakota Constitution, [Art. VI, § 20], by purporting to extend immunity to the City of Rapid City, while acting in the proprietary capacity of operating a waterworks system so as to foreclose a cause of action for negligent acts committed in that capacity.”

Analysis and Decision

[¶ 6.] A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiffs claim. A court must deny the motion unless it appears beyond doubt that the plaintiff cannot recover under any facts provable in support of the claim. Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 7, 676 N.W.2d 390, 392-93 (citations omitted). Although these “motions are viewed with disfavor and seldom prevail,” on appeal, we will examine them de novo, without deference to the trial judge’s decision. Id. (citations omitted).

[¶ 7.] At the outset, we note that the City has not raised the defense of sovereign immunity. SDCL 21-32A-3 provides:

Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense.

Id. (emphasis added). In that sovereign immunity is not directly in issue, before we reach a constitutional question, our first inquiry ought to be whether the City has been legislatively granted authority to disclaim all liability for damage caused by service pipes. The City’s position is that it is acting under SDCL 9-47-1 and 9-47-6. SDCL 9-47-1 provides in relevant part: “Every municipality may construct, establish, operate, and maintain a system of waterworks and facilities in connection therewith; may regulate the distribution and use of water supplied thereby....” SDCL 9-47-6 provides: “Every municipality shall have power to regulate and provide for the laying of water connections from the city water mains to the lot line, and to assess the cost against the abutting property owner as provided by this title.”

[¶ 8.] Cities are empowered to “enact, make, amend, revise, or repeal” ordinances. SDCL 9-19-3. The City enacted Municipal Code Ordinance 13.04.420:

A. The water and sewer department will not be responsible for service pipes and fixtures. All service pipes and fixtures on the premises and up to the tap of the city main shall be installed and kept in good working order, and properly protected from frost and other danger, at the expense of the owner or person in possession of the premises served. If such owner or person shall fail to properly repair any leaky service pipe or other apparatus promptly upon receipt of due notice from the director of utilities, his assistants or any person authorized by him, the water may immediately be shut off from the premises and remain shut off until the necessary repairs have been made and a fee as established by the common council for turning the water off and on has been paid. The city shall not be liable for any damage resulting from the breaking of any of the service pipes or apparatus, or for any other damage that may result from shutting off water for repairing or for any other purpose, or for any variation in pressure. No reduction will be made from the regular water rates because of leaky fixtures.
B. If a service line develops a leak between the main and the curb box on any service pipe and is not immediately repaired, the director of utilities may cause such service pipe to be repaired and assess the actual cost of the repair, plus ten percent, to the property.

(Emphasis added).

[¶ 9.] In Olesen v. Town of Hurley, 2004 SD 136, ¶ 15, 691 N.W.2d 324, 328, we reaffirmed a longstanding rule in South Dakota: cities “ ‘possess only those powers conferred upon them by the Legislature ... [and] a grant of authority includes those incidental or implied powers that are necessary to enable a municipality to perform the function authorized.’ ” Id. (citations omitted). Because cities have “no inherent powers, and none of the attributes of sovereignty,” the scope of their implied powers falls under “a reasonably strict standard.” Id. (citations omitted). Whatever latitude these implied powers might include “will depend upon the circumstances of each case.” Id.

[¶ 10.] We find nothing in SDCL 9-47-1 and 9-47-6 granting express authority to disclaim liability for service pipe damage occurring under city streets. The City asserts, however, that it possesses implied power to define where its water system responsibilities begin and end. No South Dakota case authority exists on this point, but the City refers us to several other jurisdictions where it claims similar city ordinances have been upheld as reasonably implied municipal powers.

[¶ 11.] In Glennon’s Milk Service, Inc. v. West Chester Area Municipal Authority, 114 Pa.Cmwlth. 88, 538 A.2d 138 (1988), a business sued a city for damage to its property caused by a leak in the service line between the city water main and the curb line. Pennsylvania law granted authority to local water authorities to “exercise all powers necessary or convenient for the carrying out of [its] purposes,” including, the authority for “the construction, improvement, repair, maintenance and operation of its facilities and properties, ... and to determine by itself exclusively the services and improvements required to provide adequate, safe and reasonable service .... ” Id. at 139-40. The court concluded that this enactment vested in the water authority “the discretion to exclusively determine what services it requires to provide adequate safe and reasonable service.” Id. at 140. Given this “exclusive power,” the water authority’s division of maintenance and repair duties between the water provider and the customer was not an abuse of discretion and a dismissal of the suit was upheld. Our waterworks statutes are not as broad as the ones in the Glennon’s case.

[¶ 12.] In another decision the City-mentions, a court confronted the question whether the cost of repair and replacement of a water service pipe extending from the main to the water stop was chargeable to the property owner. Rosborough v. City of Moline, 30 Ill.App.2d 167, 174 N.E.2d 16 (1961). Like the Pennsylvania statute examined in the Glennon’s case, an Illinois law gave water providers “the power to make all needful rules and regulations concerning the use of water supplied ... and make such rules and regulations for the construction, completion, management, or control of the waterworks, and for the fixing and collecting of such water rates or rents as [they] may deem necessary or expedient.” Id. at 21. Once again, South Dakota does not grant the broad statutory authority to municipal water authorities seen in this Illinois statute. But, it must also be noted, Rosbor-ough only stands for the routine proposition that a rule requiring consumers to bear the burden of paying for the costs of making connections between their premises and the water main is reasonable. Id. at 22 (citing McQuillin, The Law of Municipal CORPORATIONS, Vol 12, 375-78 & Vol 13, 72 (3d ed)). South Dakota grants the same authority by statute. SDCL 9-47-6.

[¶ 13.] One other case the City cites is Jackson v. Mayor, etc, of City of Ellendale, 4 N.D. 478, 61 N.W. 1030 (1894). In this opinion, the North Dakota Supreme Court had no state waterworks provision to interpret. There was only a municipal ordinance requiring lot owners to pay for the cost of service pipe installation. On “general principles,” consequently, the court ruled that the “water system established by the city, and which it must maintain, stops at the main. It does not embrace service pipes.” Id. at 1030. That was the apparent understanding the Ellen-dale city planners had when they installed the water mains. But this dated opinion is of little assistance to us because here we must interpret South Dakota statutes governing the scope of municipal powers in their operation of waterworks.

[¶ 14.] Conceding that cities can lawfully assess the cost of service lines to abutting property owners, it does not necessarily follow that because homeowners may be responsible for installation and maintenance costs, that a city cannot be sued in tort for its own negligence related to those service pipes. On the contrary, with our “reasonably strict standard” for interpreting statutorily granted municipal powers, we see little room for the implied powers the City asserts here. Under SDCL 9-47-1, cities may “regulate the distribution and use of water,” and, under SDCL 9-47-6, they “shall have the power to regulate and provide for the laying of water connections from the city water mains to the lot line....” Nothing in these statutes appears to allow cities a right to proclaim themselves “not responsible for service pipes and fixtures” extending from city water mains to water stops at lot lines. See Rapid City, SD, Municipal Code Ordinance 13.04.420(A). In fact, an opposite interpretation may well be taken from SDCL 9-47-6 because it requires that cities “shall have power to regulate and provide for the laying of water connections from the city water mains to the lot line” and “to assess the cost” to lot owners. Id. (emphasis added). Having power to “regulate and provide” obviously imports some level of responsibility.

[¶ 15.] In dealing with a similar controversy, an Ohio appeals court reasoned:

[I]f the consumer is the owner and charged with the maintenance of the service pipe from the main to the house, as claimed by the city, it appears from these rules that the owner could do nothing about repairing a leak or digging or excavating for it without first obtaining permission from the city, and certainly would have no right to excavate in the street without such permission. The erection and maintenance of a city waterworks is for the benefit of the citizens who use the- water, but control over it is vested in the proper city authorities. The duties and obligations with respect to it are mutual between the consumer and the municipal authorities. If a consumer has reason to suspect an imperfection ’in the equipment affecting his property] which would in turn affect the entire system, it is his duty to notify the city, and then it becomes the duty of the city to use ordinary and reasonable care to make necessary corrections.
A city may be liable for damages resulting from leaks in service pipes of a municipal plant if, after notice, the city does not use reasonable care in correcting imperfections, even though such service pipes belong to the consumer, especially when, as in the case at .bar* the consumer is not permitted to make ^any corrections without the permission of the city.

Seeley v. City of Norwalk, 53 Ohio App. 180, 4 N.E.2d 403, 404 (1936) (citations omitted).

[¶ 16.] Similar to the circumstances in the Seeley case, Rapid City homeowners are “responsible for the repair and replacement of all other water lines” supplying water to their home,. “including service lines from the main to the curb stop.... ” However, even though service line installation and replacement are the responsibility of homeowners, these service lines, are regulated by the City. If homeowners need access to their water service lines under the street, permission to do so must be granted by the director of the public works as required by the municipal code. From our reading of South Dakota’s statutes governing municipal waterworks, we conclude that both the City and its homeowners share responsibility for service lines extending from the water main to the water stops.

[¶ 17.] Homeowners may be held responsible for the cost of installing, repairing, and replacing these service lines. On the other hand, to the extent that a city may be responsible for damage to service pipes, the Legislature has not authorized municipalities to disclaim liability from those who seek redress in tort. The City has the duty to use reasonable care to “regulate ... water connections from the city water mains to the lot line.... ” SDCL 9-47-6. Although the City is not an insurer of its waterworks system, it cannot disclaim all liability for damages resulting from defects in service lines when its negligence has been proved. Whether plaintiffs may prevail in court on their negligence claim remains to be decided. All we declare today is that they have the right to bring their suit. Accordingly, we reverse.

[¶ 18.] Reversed and remanded.

[¶ 19.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

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

      . That policy statement provided:
      It is currently, and shall remain the policy of the City of Rapid City to be responsible for, and repair or replace, only main water lines. The responsibility for the repair and replacement of all other water lines, including service lines from the main to the curb stop, shall remain on the respective homeowner who is served by that line. There shall be an exception to this policy for all neighborhoods which have water lines constructed of polybutelene plastic. Polybutelene pipes have, over the past decade, proven to be an inferior product, highly susceptible to imperfect laying techniques and prone to pull away from its end connections. Due to the nationwide failure of these pipes and the involvement of the City of Rapid City in deciding to use these pipes over a decade ago, the City of Rapid City shall implement a good will exception to the established repair and replacement policy.
      The City of Rapid City shall repair and replace all leaky polybutelene service lines from the main to the curb stop on a ... 100 percent basis. Any polybutelene water line, which malfunctions, shall be replaced with a new copper water service line. At such time of repair, the City shall install a new copper line only to the curb stop.... Existing polybutelene water line, which runs from the residence to the curb stop, is not addressed under this good faith exception. The portion of existing polybutelene water line from the residence to the curb stop is the responsibility of the homeowner and shall be wholly an expense to that homeowner when and if replacement is required ....
      This reimbursement shall include the costs of replacing all cement and roadwork and any other costs which were a direct result of the water service line replacement. The City of Rapid City assumes no liability for any other damage caused to real or personal property as a result of the breakage of any water line but only for the costs associated with [the] replacement of such line....
      Public Works Committee Item number PW101001-12.

      . The City accepted no responsibility for repairing and replacing Poly-B lines from curb stops to residences. The issue of repairing and replacing these lines is not before us, and we give no opinion on the subject.

      . Rapid City, SD, Municipal Code 13.04.050 provides in part:
      It is unlawful for any person to ... do any plumbing work in any or on any grounds for the purpose of connecting such pipes or plumbing, directly or indirectly, to the city water mains, or make any additions to or alterations of any water pipes, water closet, stopcock or other fixtures of apparatus for the supply of any premises with water from the city water mains, without first obtaining a permit to do such work.
      -Under the City’s Municipal Code 13.04.060, ■an application must also be completed in order for any owner of property to use the City's water; the application must then be approved by the director of public works.


source: Caselaw Access Project

license: Public Domain

text:
    2005 SD 44
    Denice STRUTTON, Plaintiff and Appellee, v. SDG MACERICH PROPERTIES LP, Defendant, and U.S. Metro Group, Inc., a foreign Corporation, d/b/a Metro Cleaning Service, d/b/a Metro Building Maintenance, d/b/a Service Management Systems, Defendant and Appellant.
    No. 23376.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided March 30, 2005.

      Elizabeth M. Fredrick, Rapid City, SD, for plaintiff and appellee.
    Tobin Andrew Karn, John S. Dorsey of Whiting, Hagg & Hagg, Rapid City, SD, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Plaintiff, Denice Stratton, sued U.S. Metro Group, Inc., and others for her personal injuries. U.S. Metro failed to answer and the circuit court granted a default judgment. When U.S. Metro later moved to set aside the default, the court refused. On appeal, we affirm because the circuit court did not abuse its discretion in finding an insufficient showing of excusable neglect and mistake.

Background

[¶2.] On September 22, 2001, plaintiff injured herself in a slip and fall at the Rushmore Mall in Rapid City, South Dakota. In an effort to settle her claim, her attorney entered into negotiations with U.S. Metro’s insurance carrier, Scottsdale Insurance Company. These negotiations were unsuccessful. In November 2003, plaintiff commenced suit in circuit court. She sought to recover damages from both SDG Macerich Properties LP, the owner of the Rushmore Mall, and U.S. Metro, the custodial services provider. SDG Mace-rich timely answered and later brought a cross-claim against U.S. Metro.

[¶ 3.] On November 21, 2003, plaintiffs summons and complaint were served on both U.S. Metro’s President and its Risk Manager, Louise Nix, at their offices in Los Angeles, California. Nix notified U.S, Metro’s local insurance agent, Steve Kim, of Koram Insurance Center, Inc., in Los Angeles. Upon receiving the summons and complaint two days later, Kim discussed the lawsuit with a representative of Scottsdale Insurance.

[¶ 4.] In faxing copies to Scottsdale, he mistakenly used the wrong telephone number. He dialed area code 408 when he should have dialed 480. When Scottsdale did not receive a copy of the pleadings, it took no action on behalf of U.S. Metro. And although Kim had talked with someone at Scottsdale about the lawsuit, he was never notified by anyone there that his fax was not received. Nor did Kim follow up himself to see if Scottsdale was proceeding with a defense for its insured.

[¶ 5.] On March 18, 2004, plaintiffs attorney telephoned Risk Manager Nix at U.S. Metro. She told Nix the time for answering had expired and if U.S. Metro failed to answer the complaint immediately, a motion for default judgment would be filed. Nix assured counsel that she would contact the insurance company right away. But, after that, no answer or other form of appearance was made for U.S. Metro. On May 3, 2004, forty-six days after counsel warned that a default motion was imminent, she mailed copies of her motion for default judgment and notice of hearing to Risk Manager Nix and to U.S. Metro’s President.

[¶ 6.] Agent Kim received a copy of the motion from U.S. Metro on May 20, 2004, two days after the motion hearing was held in circuit court. He called a representative at Scottsdale Insurance and then faxed the papers to the company. Once again, however, he mistakenly sent the fax to the same wrong number. And, again, Scottsdale never inquired why it had not received these papers from Kim.

[¶ 7.] When U.S. Metro failed to appear, the circuit court granted plaintiffs motion for default judgment. The court’s Judgment of Liability provided that “liability [be] entered against the Defendant U.S. Metro ... regarding the allegations set forth in Plaintiffs complaint as it pertains to U.S. Metro, Inc.” and that “Plaintiffs request for damages against U.S. Metro Group ... be held in abeyance pending further proceedings .... ”

[¶ 8.] On July 1, 2004, U.S. Metro moved to set aside the default judgment. Following a hearing, the circuit court ruled that “despite Defendant U.S. Metro’s specific knowledge of the filing of the summons and complaint and [its] specific knowledge of Plaintiffs intent to seek a default judgment, no answer, communication, or an appearance of any sort was made by Defendant U.S. Metro before the default judgment was entered.” Accordingly, the court denied the motion. U.S. Metro now appeals, contending that the circuit court erred in denying U.S. Metro’s motion to set aside the default judgment based on its excusable neglect and mistake in failing to timely answer.

Analysis and Decision

[¶ 9.] A default judgment can be set aside on a showing of “good cause.” SDCL 15 — 6—55(c); SDCL 15-6-60(b). Doubts should ordinarily be resolved in favor of setting aside a judgment by default so that the case can be tried on the merits. Roso v. Henning, 1997 SD 82, ¶ 5, 566 N.W.2d 136, 139 (citation omitted). In the end, however, granting or denying relief from a default judgment rests in the discretion of the trial court and we will not disturb that decision absent an abuse of discretion. Id. (citation omitted); see Estes v. Ashley Hospitality, Inc., 2004 SD 49, ¶ 4, 679 N.W.2d 469, 472.

[¶10.] To obtain relief, U.S. Metro must show that it (1) acted with excusable neglect or mistake, and (2) had a meritorious defense. See SDCL §§ 15-6-55(c) and 15-6-60(b)(l); Roso, 1997 SD 82, ¶ 11, 566 N.W.2d at 141. Although no guidelines or standards exist to ascertain “excusable neglect,” we have generally held that it “must be neglect of a nature that would cause a reasonably prudent person under similar circumstances to act similarly.” Peterson v. La Croix, 420 N.W.2d 18, 19-20 (S.D.1988). Whether excusable neglect or mistake occurred must be judged on the unique facts of each case. The burden of establishing these exceptions rests with the party asserting them.

[¶ 11.] U.S. Metro points to its mistaken reliance on its local insurance agent, Steve Kim, to support its claim for relief. Because it thought Kim had given notice of the claim to Scottsdale, and because Kim’s dialing error was the reason Scottsdale did not receive the faxes, U.S. Metro argues that fault should not be ascribed to it for failing to timely respond. In its ruling, the circuit judge commented, “Turning the claim over to one’s insurance company, and the failure of that insurance company to properly follow-up and ensure that its insured’s interests were protected does not, in this Court’s mind, rise to excusable neglect. If there is harm to this Defendant, the recourse seems to be with the insurance carrier.” From this remark, U.S. Metro reasons that the circuit court confused U.S. Metro’s insurance agent with its liability carrier when it concluded that Scottsdale had been given notice of the suit.

[¶ 12.] Yet, Scottsdale did receive notice: two telephone calls from Steve Kim. Rather than checking with Kim to find out why the suit papers had not yet been sent, Scottsdale did nothing. U.S. Metro was no more diligent. After receiving a warning directly from plaintiffs counsel that a default judgment hearing was imminent, U.S. Metro did nothing to ensure for itself that its liability carrier was indeed proceeding with a defense. When nothing apparently happened after it originally gave the suit papers to Kim, U.S. Metro had some responsibility to act on its own. It could not continue to rely on someone else and absolve itself of responsibility. Such reliance was not sufficient, especially after it received a courtesy warning from plaintiffs counsel. See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983) (neglect of an insurance agent and carrier are not valid for purposes of excusable neglect relief for insured).

[¶ 13.] In sum, U.S. Metro’s own lack of diligence, along with the negligence of its insurance agent and its insurance carrier, all support the court’s decision. A reasonably prudent person would not have acted similarly under these circumstances. No one — not U.S. Metro, not Agent Kim, not Scottsdale Insurance — took any follow up action after their communications about this suit to ensure that it was being handled properly. We conclude that the circuit court did not abuse its discretion in denying U.S. Metro’s motion.

[¶ 14.] Affirmed.

1¶ 15.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

       SDG Macerich is not a party to this appeal.


author: ZINTER, Justice. SABERS, Justice

text:
    2005 SD 46
    STATE of South Dakota, Plaintiff and Appellee, v. Anthony Lee REYES, Defendant and Appellant.
    No. 23207.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided March 30, 2005.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, SD, for plaintiff and ap-pellee.
    Jeremiah J. Davis, Office of the Public Defender for Pennington County, Rapid City, SD, for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Anthony Reyes appeals his convictions of kidnapping, first degree rape, and sexual contact with a child under sixteen. We affirm.

Facts and Procedural History

[¶ 2.] Anthony Reyes, 20 years old at the time of trial, lived his entire life with his mother. He had previously pleaded guilty to sexual contact with N.O., a six-year-old boy. This case, involved R.M., an eight-year-old boy.

[¶3.] The facts supporting the jury verdict reflect that on February 12, 2003, R.M. was walking home from school alone. He had gotten out of school at approximately 1:40 p.m., and it usually took ten or twenty minutes to get home. However, on this day, R.M. did not get home until 2:15 p.m. R.M. testified that the delay - was caused by an incident with Reyes. Although R.M. had never seen Reyes before, he noticed Reyes standing in his yard. Reyes called out for R.M. to come over, but R.M. continued walking. Reyes then came out of his yard and told R.M. to “come here.” R.M. testified that he told Reyes he did not want to go with him, but Reyes told R.M. to come with him into the backyard. R.M. testified Reyes further indicated that he was not going to hurt him. R.M. eventually accompanied Reyes into his backyard because Reyes “was older.”

[¶ 4.] After going into the backyard, Reyes took R.M. into a shed. Once in the shed, Reyes kissed R.M., put his hand in R.M.’s pants, and “touched inside his butt.” In the course of this assault, Reyes asked R.M. the specific question “why can’t I rape you?” Reyes then offered to give R.M. money, a car, or a present. R.M. testified that Reyes made him promise not to tell anyone and to come back the next day. R.M. stated that he crossed his fingers because he would never keep a secret like that.

[¶ 5.] R.M. immediately ran home and told his mother what had happened. Law enforcement came to R.M.’s home and talked to him for approximately twenty minutes. A detective testified that R.M. acted bashful, embarrassed, and quiet. During the interview, R.M. identified Reyes in a photo lineup. R.M. also showed two officers where the assault had occurred.

[¶ 6.] After taking R.M. home, the two officers returned to Reyes’ house. Detective Holbrook explained to Reyes and his mother that they were investigating a report they had received and that Reyes probably knew what he was talking about. Holbrook and Reyes went outside, and Reyes initially denied knowing what Hol-brook was referring to. Eventually, however, Reyes said that he saw the little boy outside, but that he had not done anything to him. Reyes then became noticeably nervous and tears welled up in his eyes. Reyes also voluntarily told Holbrook that he was a registered sex offender and that he knew this incident had something to do with N.O.

[¶ 7.] Holbrook then went into the backyard and observed the shed that R.M. had described. Holbrook also observed large and small footprints in the snow. Holbrook testified that there were larger footprints between the house and the shed, and there were smaller, footprints between the shed and a gate to the alley.

[¶ 8.] One week after the assault, R.M. was interviewed by Lora Hawkins, a forensic interviewer at the Child Advocacy Center of the Black Hills. The video tape of this interview, with a few redactions, was shown to the jury.

[¶ 9.] Reyes relied upon an alibi defense at trial. His mother testified that he did not leave the house the entire afternoon. She stated that Reyes had gone outside for a cigarette that afternoon, but she was sitting in the kitchen and would have seen him leave the yard or pass by the window if he had gone into the backyard. Reyes’ uncle supported the alibi by testifying that he called Reyes shortly before 2:00 p.m. The uncle’s testimony suggested that Reyes could not have committed the offense because the uncle arrived at the Reyes’ home soon after 2:00 p.m. and stayed to do some things around the house.

[¶ 10.] The jury found Reyes guilty of all three offenses. One month after the trial, and after finding corroborating records of the uncle’s phone call, Reyes moved for a new trial. The motion was denied.

[¶ 11.] Reyes appeals raising the following issues:

1. Whether the trial court erred in admitting the prior sexual contact conviction involving N.O.;
2. Whether the trial court erred in allowing the jury to watch the videotaped, forensic interview of R.M. and whether the trial court erred in allowing the forensic interviewer to testify at trial;
3. Whether the trial court erred in denying Reyes’ motion for a new trial following the post-trial discovery of evidence corroborating some alibi evidence;
4. Whether the evidence was sufficient to support the verdict on kidnapping.

Decision

Other Acts Evidence

[¶ 12.] Reyes contends that the trial court erred in admitting evidence of Reyes’ prior sexual contact with N.O. Reyes asserts that this evidence was used to establish that Reyes had the propensity to sexually abuse young boys, an improper purpose under SDCL 19-12-5 (Rule 404(b)).

[¶ 13.] “In reviewing a trial court’s decision to admit other acts evidence, this Court will not overrule the trial court’s decision unless there is an abuse of discretion.” State v. Jolley, 2003 SD 5, ¶ 5, 656 N.W.2d 305, 307 (citations omitted). This Court does not determine whether we would have admitted the other acts evidence, “but whether the trial court sitting in this case abused its discretion by doing so.” Id. (citations omitted).

[¶ 14.] A trial court’s decision to admit other acts is controlled by SDCL 19-12-5 (Rule 404(b)).

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under this rule “the admissibility of other acts evidence depends on a two-step analysis: (1) Whether the evidence is relevant to an issue other than character, and (2) whether ‘the probative value of the evidence is substantially outweighed by its prejudicial effect.’ ” State v. Wright, 1999 SD 50, ¶ 17, 593 N.W.2d 792, 800 (citation omitted). The first prong concerns factual relevancy; i.e., whether the prior acts evidence tends to make the existence of an admissible fact more or less probable. State v. Chamley, 1997 SD 107, ¶ 10, 568 N.W.2d 607, 611. The second prong concerns legal relevancy; i.e., “whether the probative value of the proffered evidence substantially outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Id.

[¶ 15.] Because Reyes relied upon an alibi defense, identity was a fact issue in this case. As we have previously stated, “[e]vidence of prior acts similar in nature to the charged offense may be admitted where a defendant’s identity is in issue.” State v. Lassiter, 2005 SD 8, ¶ 16, 692 N.W.2d 171. See SDCL 19-12-5 (Rule 404(b)). The evidence is often permitted when a particular modus operandi is shown. Lassiter, 2005 SD 8, ¶ 16, 692 N.W.2d at 176. Under the modus operan-di exception, the “acts need not be identical, but they must be of such close similarity that an inference can be drawn that the same person committed the acts.” Id. (citing McCormick on Evidence § 190 (2d ed. 1972)).

[¶ 16.] Here, the trial court not only found similarities, but “striking” similarities in the offenses committed against N.O. and R.M.:

The Court finds that striking similarities between the testimony of N.O. and R.M. exist. Those similarities are as follows: both victims were boys; both victims were between the ages of seven and eight at the time the crimes were perpetrated upon them; the Defendant offered both of them money and/or a toy car; both boys were touched on their genitals and were penetrated in their rectum (although N.O. did not testify at the motion hearing that he was penetrated rectally he originally reported that he was and the Defendant so admitted to Investigator Craig Wood; see the police reports introduced at the motion hearing held on May 23, 2003.); both boys recall the Defendant saying “Why can’t I rape you?”; one boy was raped near a storage shed, the other was raped in a shed.

Considering these similarities, the prior act relating to N.O. was factually relevant to prove identity, an issue other than character.

[¶ 17.] The prior act was also legally relevant. Once other acts evidence is found to be relevant, “the balance tips emphatically in favor of admission unless the dangers set out in Rule 403 ‘substantially’ outweigh probative value.” Wright, 1999 SD 50, 14, 593 N.W.2d at 799 (citation omitted). Considering the similarities previously noted, the probative value of the other act was high enough that a trial court could have concluded that it was not outweighed by the danger of unfair prejudice. Therefore, Reyes has not shown that the trial court abused its discretion in allowing use of the other act to establish identity.

Videotaped Interview and Testimony of Forensic Interviewer

[¶ 18.] The State was allowed to introduce a videotape of R.M.’s interview and the testimony of Lora Hawkins, the forensic interviewer. On appeal, Reyes contends that, because R.M. was available to testify, this evidence was essentially used to “bolster” R.M.’s testimony.

[¶ 19.] “Decisions to admit or refuse evidence are reviewed under the abuse of discretion standard.” State v. Phair, 2004 SD 88, ¶ 11, 684 N.W.2d 660, 664 (citation omitted). We also review the decision to allow a jury to view a videotaped interview under an abuse of discretion standard. State v. Owens, 2002 SD 42, ¶¶ 75-76, 643 N.W.2d 735, 754-755.

[¶ 20.] The testimony and videotape were offered under SDCL 19-16-38, a hearsay exception for statements made by young children concerning sexual abuse. That statute provides:

A statement made by a child under the age of ten, or by a child ten years of age or older who is developmentally disabled as defined in § 27B-1-3, describing any act of sexual contact or rape performed with or on the child by another, or describing any act of physical abuse or neglect of the child by another, or any act of physical abuse or neglect of another child observed by the child making the statement, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C in the courts of this state if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness. However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

No statement may be admitted under this section unless the proponent of the statement makes known his intention to offer the statement and the particulars of it, including the name and address of the declarant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

Id.

[¶ 21.] Following a hearing, the trial court made the following relevant findings regarding admission of the evidence under this tender years statute:

• Lora Hawkins was a trained forensic interviewer.
• Ms. Hawkins met with R.M. on February 19, 2003.
• R.M. was eight years old and a third grade student at E.B. Berquist Elementary School.
• Lora Hawkins testified that when R.M. was asked if he knew why he was there to see her, he said “Something bad happened to him.”
• Hawkins indicated that while in the shed, the young man kissed him and that his tongue went into his mouth, and R.M. reported that the man’s mouth tasted like cigarettes.
• R.M. related that the man said “Why can’t I rape you?”
• R.M. told Hawkins that the man’s hands went down the back of his pants and penetrated his rectum.
• R.M. also told Hawkins that the man touched his penis with his hand.

The trial court also made the following conclusions of law (some of which are findings of fact) regarding admission:

• The statements made to Hawkins were not otherwise admissible.
• The statements of R.M. described an act of rape or sexual contact perpetrated against him.
• The time, content and circumstances of the statement provided sufficient indicia of reliability.
• Proper notice had been given.
• The child was reliable as a witness; specifically, there was no indication of suggestibility. The child appeared to be cautious and careful in his answers. The child was bright and clear in speaking. The child presented with a good vocabulary. When asked to return the next day by the Defendant, the child crossed his fingers before promising to return.
• The statement was made in a controlled environment by a professional forensic interviewer.

Considering these findings and conclusions, admissibility was established under SDCL 19-16-38.

[¶ 22.] Although the evidence was admissible under this statute, Reyes contends that Hawkins’ testimony was inadmissible because it was used to bolster R.M.’s credibility. We have often stated that “one witness may not testify as to another witness’ credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.” State v. Edelman, 1999 SD 52, ¶ 21, 593 N.W.2d 419, 423 (citing McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989)). In this case, Reyes objects to Hawkins’ testimony highlighting certain aspects of R.M.’s story:

[t]he kissing had a quality that we would say lends validity to an interview because [R.M.] spontaneously, after he had talked about the kissing, at one point he talked about the tongue — the man’s tongue going in his mouth. [R.M.] said ' that he tried to keep his mouth closed so that the tongue couldn’t come in. He also gave what we would call a sensory detail. He talked about the man tasting like — that he tasted like he smoked or that he tasted like a cigarette.

[¶ 23.] Although Hawkins’ testimony was not admissible to “invade ... the province of the jury to determine [a child’s] credibility,” State v. Floody, 481 N.W.2d 242, 249 (S.D.1992), it was admissible when reviewed in context. This testimony was actually given in response to a defense contention that R.M. had been subjected to suggestion and that his testimony had been tainted by adults. Consequently, this response was made to identify facts tending to refute the suggestion that the child’s testimony had been tainted. In another case involving a statement made by a child sexual abuse victim, this Court approved similar testimony describing the characteristics of an abused child’s story because it was “helpful to the jury in deciding whether the interviewing techniques utilized ... were suggestive or leading.” Id.

[¶ 24.] The same is true here. Hawkins did not testify that R.M. was credible or reliable. Rather, Hawkins only described the things that R.M. told her and the characteristics of the story that refuted the suggestion it was tainted. Therefore, the trial court did not abuse its discretion in admitting either Hawkins’s testimony or her interview with R.M.

Denial of Motion for a New Trial

[¶ 25.] Reyes contends that his motion for a new trial was improperly denied. Reyes’ motion rested upon the post-trial discovery of telephone records that corroborated the uncle’s alibi testimony concerning his 1:55 p.m. telephone call. Considering this corroborative evidence, Reyes argues that his “substantial rights were seriously harmed when his alibi defense ... was questioned and ridiculed” by the State. “Whether a new trial should be granted is left to the sound judicial discretion of the trial court and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion.” Fechner v. Case, 2003 SD 37, ¶ 11, 660 N.W.2d 631, 635 (citation omitted).

[¶ 26.] As a part of the alibi defense, Reyes’ mother testified that Reyes did not leave the house the entire afternoon, except to go on the porch and have a cigarette. Reyes’ uncle, Leon Alverson, testified that he talked to Reyes on the telephone shortly before 2:00 p.m. Alverson also testified that he went to the Reyes’ home shortly after 2:00 p.m. and Reyes was on the porch smoking. The phone records discovered after trial confirmed that the call was made from Alverson’s home to the Reyes’ residence at 1:56 p.m. on the day in question.

[¶ 27.] Although the State knew that an alibi defense would be offered, Reyes concedes that the State did not know that telephone records would be material until the defense discussed them in Reyes’ opening statement. Upon learning of the materiality of the alleged telephone call, the State’s attorney sought an “emergency subpoena” to obtain the telephone records. However, despite the expeditious request, the corroborative records were not produced by the phone company until after the completion of the trial.

[¶ 28.] Based upon these telephone records, Reyes moved for a new trial under SDCL 15-6-59(a). The trial court considered the motion under SDCL 15-6-59(a)(4), which governs newly discovered evidence. Under subsection (4):

[tjhose who seek another trial on after-discovered evidence must show:
(1) the evidence was undiscovered by the movant at the time of trial;
(2) the evidence is material, not merely cumulative or impeaching;
(3) that it would probably produce an acquittal; and
(4) that no lack of diligence caused the movant to fail to discover the evidence earlier.

State v. Gehm, 1999 SD 82, ¶ 13, 600 N.W.2d 535, 540 (citations omitted).

[¶29.] The trial court found no lack of due diligence in the failure to discover the phone records because even the trial court was unaware that local phone records could be recovered. However, the trial court found that the jury would not have come to a different verdict if the phone records had been introduced. The trial court noted that Alverson’s testimony about the phone call was believable without the phone records. The trial court further noted that confirmation of the phone call did not make the time frame for the assault impossible. And, the trial court finally noted that the records were cumulative. In light of these findings, the trial court did not err in denying the motion under SDCL 15-6-59(a)(4).

[¶ 30.] Reyes also argues that because of the corroborating telephone records, the prosecutor’s impeachment of alibi witnesses constituted an “irregularity in the proceedings” that justified a new trial under SDCL 15—6—59(a)(1). In Fechner, 2003 SD 37, ¶ 12, 660 N.W.2d at 635, we stated that an “ ‘irregularity in the proceedings’ ... relates generally to departures by the court, during the trial of a case, from the due and orderly method of disposition of a case....” (Citation omitted.) “In South Dakota this concept includes misconduct on the part of the court, the attorneys, and the parties.” Id. (internal citations omitted).

[¶ 31.] In this case, Reyes argues an irregularity because of “the conduct of the prosecutor, in simultaneously impugning the integrity of alibi testimony ... and verifying the veracity of that testimony on an expedited basis [through the issuance of the emergency subpoena].” This argument might have validity if the State had impugned the alibi testimony at a time when it knew that it was true. However, Reyes concedes that the State was only attempting to obtain the telephone records at the time of the impeachment. Thus, the State did not know that the records confirmed the uncle’s testimony. Because the State did not have the “verifying” information at the time it was impeaching the alibi witnesses, Reyes may not combine these events to make it appear that the State was involved in an “irregularity in the proceedings” by discrediting a witness it knew to be truthful.

[¶ 32.] Reyes finally argues that there was an irregularity in the proceedings because of an argument made by the State in closing argument. The argument asked the jury to consider the interest that the alibi witnesses had in the outcome of the trial. The State argued:

we did hear information from the family about what [Reyes] was doing that day. We heard it from his mother. We heard it from his uncle.... Ask yourself who is giving you this information. Where are you hearing it from.... God willing my mother would alibi me if I were charged with something serious. Just ask yourself that question.

[¶ 33.] We observe it is generally proper argument to point out the motive and personal interest that witnesses may have in the outcome of a trial. Reyes, however, argues that the last sentence of the argument, reflecting the prosecutor’s hope that his mother would provide him an alibi if he were charged with something serious, was improper. Reyes points out that we have held it is improper for counsel to “state facts of his personal, experience, or his own knowledge of the facts, unless he has testified thereto as a witness, or. to make his argument an avenue for the presentation of unsworn testimony, or for him to insinuate that he has knowledge of facts.” Schoon v. Looby, 2003 SD 123, ¶ 7, 670 N.W.2d 885, 888 (citation omitted).

[¶ 34.] In this case, the trial judge who heard the statements in context observed that the prosecutor’s reference to his mother only pointed out a motive for relatives to provide favorable testimony, and the State’s statement was only asking the jury to take that into consideration. We agree.

[¶ 35.] It is important, to note that the prosecutor did not assert any actual knowledge of Ms mother or of any trial witness. ■ The prosecutor’s reference to his mother was merely a hypothetical or analogy pointing out a hope that a mother would assist her child. Therefore, unlike Schoon, the State’s argument here was simply asking jurors to consider the interest that this type of witness might have in the outcome of the case, a consideration which is permissible in determining witness’s credibility or bias.

Kidnapping

[¶ 36.] Reyes argues that the trial court should have entered a judgment of acquittal because there was insufficient evidence to support the kidnapping charge.

“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.”

State v. Pasek, 2004 SD 132, ¶7, 691 N.W.2d 301, 305 (citing State v. Laplante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310).

[¶ 37.] Reyes was 'charged with kidnapping under SDCL 22-19-1(2), which provides:

Any person who shall seize, confine, inveigle, decoy, abduct, or carry away any person and hold or detain such person, except in the case of an unmarried minor by a parent thereof, for any of the following reasons:
(2) To facilitate the commission of any felony or flight thereafter;
is guilty of kidnapping....

Reyes argues that “there was no evidence that R.M. was seized, confined, inveigled, decoyed, abducted or carried away. Rather, R.M.’s testimony was that he willingly accompanied Reyes to the scene of the alleged crime.” Reyes also argues that there was “[n]o ... showing of physical force, actual or implied” in getting R.M. into the backyard and the shed.

[¶ 38.] However, this argument fails both factually and legally. First, Reyes’ arguments fail to acknowledge that factually, the jury could have found force or fear, express or implied, in the movement of R.M. from the public sidewalk, to the alley, to the backyard, and ultimately the shed. R.M. testified that, while he was walking by Reyes’ house, Reyes told him to come over. R.M. said no, and Reyes told him “I won’t hurt you.” Reyes then asked R.M. to come over again. This time R.M. complied with Reyes’ request “[b]e-cause he was older.” Considering R.M.’s age and all other surrounding circumstances, the jury could have inferred that factually, this conduct involved implied physical force or fear.

[¶ 39.] Moreover, Reyes’ argument fails to acknowledge that legally, physical force is not the exclusive method of kidnapping under the statute. Kidnapping may also occur by inveigling or decoying. See SDCL 22-19-1. Black’s Law Dictionary (8th ed. 2004) defines decoy as “to entice (a person) without force; to inveigle.” We have defined inveigle as “[t]o lure or entice or lead astray, by false representations or promises, or other deceitful means.” State v. Running Bird, 2002 SD 86, ¶ 25, 649 N.W.2d 609, 614 n. 3 (citation omitted).

[¶ 40.] Thus, even if R.M. voluntarily accompanied Reyes into his backyard and shed, the jury could have found that R.M. was decoyed or inveigled into doing so. See State v. Stokes, 345 S.C. 368, 548 S.E.2d 202, 204 (S.C.2001) (finding that where decedent was tricked into going with her would-be murderers, she was “inveigled” or “decoyed,” negating the volun-tariness of her participation). R.M. indicated that he went with Reyes because he was older. Furthermore, R.M. did not know that Reyes was going to sexually assault him, in fact, Reyes assured him twice that he would not be hurt. Considering all the facts and circumstances, the jury could have reasonably found that R.M. was inveigled or decoyed by Reyes from the public right-of-way to the shed. Because the kidnapping could have occurred under these circumstances without physical force or fear, there was sufficient evidence to sustain the charge of kidnapping.

[¶ 41.] Reyes finally contends that “no increased risk of harm was posed by the movement from the front yard to the shed, other than the molestation and rape itself.” Accordingly, Reyes argues that he could not have been convicted of kidnapping under the Curtis/Reiman test, which precludes a kidnapping conviction if it is only incidental to the underlying rape. In State v. Lykken, 484 N.W.2d 869, 876 (S.D.1992), this Court discussed the Curtis/Reiman test in determining whether a defendant may be convicted of kidnapping and rape:

The Curtis/Reiman doctrine is not meant to allow a rapist a free kidnapping because he also commits a rape. It is meant to prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape. Such brief restraint does not normally increase the victim’s risk of harm over and above that already inherent in the act of rape.

Id. This discussion highlighted the central thesis of the Curtis/Reiman doctrine: the need for some increased risk of harm to sustain a kidnapping conviction.

[¶ 42.] Here, the movement of R.M. from the sidewalk to an alley and then to the backyard and closed shed clearly increased this victim’s risk of harm. It is highly unlikely that the kissing, fondling, and rape of this child could have occurred on the sidewalk or alley near Reyes’ home. On the contrary, “most movement of rape victims by their attackers is designed to seclude the victim from possible assistance and to prevent escape — which inevitably increases the risk of harm to the victim.” Running Bird, 2002 SD 86, ¶ 26, 649 N.W.2d at 614-615 (citing State v. St. Cloud, 465 N.W.2d 177, 181 (S.D.1991)). See also Charles E. Torcia, Wharton’s Criminal Law § 207 (15th ed. 1994 & Supp. 2005) (stating that, “[d]epending upon whether the movement of the victim is merely incidental to the commission of the crime ... of rape, the movement will or will not constitute the separate offense of kidnapping.”). Because the risk of harm to R.M. was increased by his movement from the sidewalk to the seclusion of the shed, the Curtis/Reiman doctrine did not preclude the kidnapping conviction.

[¶ 43.] Affirmed.

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

[¶ 45.] SABERS, Justice, concurs in part and concurs in result in part.

SABERS, Justice

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

[¶ 46.] I concur in result on Issues 1 and 2 and concur on Issues 3 and 4.

      . Reyes' mother stated that she checked the caller ID and the phone call had been received at 1:55 p.m. However, Reyes' mother indicated that the caller ID record was accidentally erased before trial.

      . Reyes contends that the other acts evidence was also improperly used during closing argument. In the argument, the State stated “[N.O.] and his parents have waited 11 months for this day.... Think about [R.M.] and think about [N.O.]
      Although this argument was improper, the trial court immediately admonished the jury stating that ”[w]e're not here to decide whether [N.O.] is waiting for this day or not....” The trial court then reminded the jury of the instructions defining the permissible use of the N.O. conviction.

      . Reyes disputes the similarities, relying on Chamley, 1997 SD 107, ¶ 15, 568 N.W.2d at 613 (stating that this Court has found reversible error when the State was allowed to introduce evidence of dissimilar sexual acts involving children). However, Chamley involved four other acts, only one of which this Court found to be "even remotely similar" to the current charges. Id. ¶¶ 14-15. Therefore, this Court concluded that, "[gjiven the lack of similarity between the prior bad acts and the charged conduct, it was error for the trial court to allow the jury to hear the prior bad acts evidence.” Id. There was not this degree of dissimilarity in this case.

      . Reyes also asserts that R.M. was not old enough to know the difference between the truth and a lie and that the forensic interviewer had to ask him questions several times before getting an inculpatory answer. These objections go to the weight, rather than the admissibility, of this evidence.

      . Because Hawkins and R.M. testified, there was no confrontation clause issue. See State v. Carothers, 2005 SD 16, 692 N.W.2d 544. We express no other opinion on the constitutionality of this statute under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Reyes did not object to this portion of Hawkins' testimony. Nevertheless, we choose to review it.

      . SDCL 23A-9-1 provides:
      Within the time specified in § 23A-8-4 for pretrial motions, upon written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, a defendant shall serve within ten days, or at such different time as the court may direct, upon the prosecuting attorney a written notice of his intention to offer a defense of alibi. The notice shall state the specific place or places where the defendant claims he was at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

      . SDCL 15-6-59(a) provides in relevant part:
      A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
      (1) Irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

        (4) Newly discovered evidence, material to the party making the application, which he could not with reasonable diligence
      have discovered and produced at the trial;

      . The motive and personal interest of witnesses was a proper subject of consideration under jury instruction # 27, which stated:
      You are the exclusive judges of all questions of fact and the credibility of the witnesses and the weight that should be given to their testimony.
      In judging the credibility of the witnesses and determining the weight to be given their testimony, you may and should consider the opportunity and capacity of the several witnesses for seeing and knowing and remembering the matters about which they have testified; their conduct and demeanor while testifying, their apparent candor, fairness, bias or prejudice, if any appear; their interest or lack of interest in the result of the case; the motive, if any, actuating them as witnesses; the reasonableness of their statements, and all the evidence, facts and circumstances shown tending to shed light upon the truth or falsity of the testimony of any witness in the case and the weight to be given the testimony.
      If you believe that any witness has knowingly sworn falsely to any material fact in the case, you may reject all of the testimony of any such witness.

      . State v. Reiman, 284 N.W.2d 860 (S.D.1979); State v. Curtis, 298 N.W.2d 807 (S.D. 1980).


author: MEYER, Justice.

text:
    Dennis HICKMAN, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, a foreign corporation, Respondent, Guaranty Residential Lending, Inc., a foreign corporation, Respondent.
    No. A03-2042.
    Supreme Court of Minnesota.
    May 5, 2005.

      Patrick J. Neaton, Neaton & Puklich, P.L.L.P., Minnetonka, MN, for Appellant.
    Marlene S. Garvis, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for respondent SAFECO Ins. Co.
   OPINION

MEYER, Justice.

The issue in this case is whether appellant Dennis Hickman (Hickman) is a third-party beneficiary of an insurance contract under the “intent to benefit” test. Hickman had a mortgage on his home with respondent Guaranty Residential Lending, Inc. (Guaranty). When Hickman failed to provide proof of insurance as required under the mortgage agreement, Guaranty purchased a fire and windstorm insurance policy from General Insurance Company of America, an affiliate of SAFECO Insurance Company of America (SAFECO). In June 2002, Hickman’s home suffered storm damage; he sought and was denied insurance coverage under the fire and windstorm insurance policy issued by SAFECO. Hickman brought suit against SAFECO and Guaranty. The district court granted summary judgment for SAFECO. The court of appeals affirmed the district court’s grant of summary judgment concluding that Hickman was not a third-party beneficiary because he “was not the named insured or listed as an insured under the policy, and payment was made directly to [Guaranty].” Hickman v. SAFECO Ins. Co. of Am., No. A03-2042, 2004 WL 1828870, at *5 (Minn.App. Aug. 17, 2004). Hickman petitioned this court for review of the decision of the court of appeals. We granted review only on the issue of whether Hickman was a third-party beneficiary of the insurance contract under the “intent to benefit” test. We reverse the court of appeals.

In December 1986, Hickman and his wife purchased their home in Watertown, Minnesota. To finance the purchase, Hickman and his wife obtained a first mortgage in the amount of $58,100 from Rothschild Financial Corporation and a second mortgage from the Minnesota Housing Finance Agency. The first mortgage was subsequently assigned to Temple-Inland Mortgage Corporation and then to respondent Guaranty.

Beginning in 1999 or before, Hickman failed to provide proof of insurance as required under the mortgage agreement. Temple-Inland, who then held the mortgage, obtained insurance on the home from SAFECO. The provisions of the insurance contract between Guaranty and SAFECO" provide in relevant part:

Agreement
We will provide the insurance described in this policy in return for the premium and compliance by you and the “borrower” with all applicable provisions of this policy.
Definitions
Throughout the policy, “you” and “your” refer to the Named Insured Mortgagee shown in the Declarations.
“Borrower” means the mortgagor or mortgagors of an “insured location” indebted under a mortgage held or serviced by you. As used in this policy,
■ “borrower” applies to the “insured location” on which the “borrower” is the mortgagor.
⅜ * * :}c
“Eligible Property” means “residential property” * * * on which you do not have evidence of “fire insurance” protecting your interest as:
1.mortgagee * * ⅜.
* * * *
“Insured Location” means an “eligible property” upon which you have requested insurance in accordance with General Condition 25 * * *.
“Limit of Liability” on an “insured location” is the amount of insurance you request and report to us. The “limit of liability” cannot exceed the greater of:
1. the amount of the indebtedness to you;
2. the amount of expired or canceled “fire insurance” shown in your records.
3. if “residential property”, the replacement cost of the building; or
4. if “commercial property”, the “actual cash value” * * *.

The policy includes coverage for the “dwelling on the ‘insured location,’ ” “other structures on an ‘insured location,’ ” and “personal property, usual to the occupancy as a dwelling and owned or used by the ‘borrower’ or members of the ‘borrower’s’ family residing with the ‘borrower’ while it is on the ‘insured location.’ ” The policy provides that payment for a loss, except losses under personal property coverage, will be paid to Guaranty up to the amount of its interest and “[a]mounts payable in excess of [Guaranty’s] interest will be paid to the ‘borrower.’ ” For losses under the personal property coverage, the policy provides that SAFECO will “adjust all losses with the ‘borrower’ ” and “will pay the ‘borrower.’ ” Under the policy, the “claimant” also has rights in connection with the appraisal of any loss. The term “claimant” is not defined in the contract, but by the terms of the contract includes the borrower, Hickman.

On March 31, 2000, and in the subsequent three years, Temple-Inland and its successor Guaranty sent Hickman written notice informing him that they had obtained insurance on the home. Hickman did not obtain any other insurance coverage on the home.

On June 24, 2002, Hickman’s home and the detached storage building on the property were damaged by a windstorm. After the windstorm, FEMA inspected the property and concluded that the house was a total loss. The estimate of damages Hickman obtained from a local contractor, GDS Design and Build, Inc., was $114,048. Aaron Willander of Crawford & Company, SAFECO’s insurance adjuster, also inspected the property but concluded that the house was not a total loss. Based on Willander’s estimates, SAFECO sent Guaranty $50,981.80 in insurance proceeds — $42,431.80 for the house and $8,550 for the storage building.

By late 2002, the unpaid balance of Hickman’s mortgage to Guaranty was less than $43,000. Hickman requested that Guaranty apply the insurance proceeds to the outstanding balance on their mortgage. Guaranty eventually did so and sent Hickman $7,339.08, the balance of the amount it received from SAFECO.

Hickman filed a complaint against SAFECO and Guaranty in March 2003 contending that under the terms of the insurance policy obtained from SAFECO by Guaranty, he was entitled to insurance coverage up to the policy limit for the losses incurred as a result of the storm. On August 26, 2003, SAFECO filed a motion for summary judgment asserting that Hickman failed to prove that he was either a party or a third-party beneficiary to the insurance contract issued to Guaranty by SAFECO. The district court granted SAFECO’s motion for summary judgment, concluding that Hickman failed to establish a genuine issue of material fact because he was not a named party to the contract or a third-party beneficiary under either the “duty owed” test or the “intent to benefit” test. The district court also dismissed the complaint against Guaranty.

The court of appeals affirmed summary judgment in favor of SAFECO, concluding that Hickman was not a third-party beneficiary to the contract because he was not listed as an insured under the policy, payment was made directly to Guaranty, and “[n]o evidence in the record indicates that appellant was more than an incidental beneficiary of the contract.” Hickman, 2004 WL 1828870, at 5. The court of appeals reversed the dismissal of the complaint against Guaranty and remanded for consideration of Hickman’s claim because the district court’s memorandum did not address it. Id. Hickman petitioned this court for review. On October 27, 2004, we granted review solely on the issue of whether Hickman is a third-party beneficiary of the insurance contract under the “intent to benefit” test.

On review of summary judgment, we determine whether there- are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In our review, we view the evidence in the fight most favorable to the party against whom summary judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954). A motion for summary judgment is granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03.

The interpretation of insurance contract language is a question of law as applied to the facts presented. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992) (citing Nat’l City Bank of Minneapolis v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn.1989)). Where the intention of the parties is clear from the face of a contract, construction of the contract is a question of law for the court. Donnay v. Boulware, 275 Minn. 37, 44, 144 N.W.2d 711, 716 (1966). If there is ambiguity, extrinsic evidence may be used, and construction of the contract is a question of fact for the jury unless such evidence is conclusive. Id.

. Generally, a. stranger to a contract does not have rights under the contract, but an exception exists if a third party is an intended beneficiary of the contract. N. Nat’l Bank of Bemidji v. N. Minn. Nat’l Bank of Duluth, 244 Minn. 202, 208, 70 N.W.2d 118, 123 (1955). In Cretex Companies, Inc. v. Construction Leaders, Inc., 342 N.W.2d 135, 139 (Minn.1984), we adopted the intended beneficiary approach of the Restatement (Second) of Contracts, which states:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the prom-isee to pay money to the beneficiary [duty owed test]; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance [intent to benefit test].
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1979). Thus, if recognition of third-party beneficiary rights is “appropriate” and either the . duty owed test or the intent to benefit test is met, the third party can recover as an “intended beneficiary.” Id.; Cretex, 342 N.W.2d at 139. If a beneficiary does not meet either of these tests, it is an incidental beneficiary and has no right to enforce the contract. See Cretex, 342 N.W.2d at 139. In ascertaining the parties’ intent to benefit a third person, the contract is read in light of all the surrounding circumstances. Id. at 140.

Under the “intent to benefit” test of the Second Restatement, the circumstances must indicate that the promisee (here Guaranty) intends to give the beneficiary (Hickman) the benefit of the promise. Restatement (Second) of Contracts § 302(l)(b). Hickman argues that the circumstances here indicate that Guaranty intended to give him the benefit of the insurance contract, or that at least a fact question exists on this issue. Hickman points to several provisions in the insurance policy to support his status as an intended third-party beneficiary. Specifically, the policy obtained by Guaranty recognizes the class of “borrowers” that is defined as the mortgagor of an insured location indebted under a mortgage to Guaranty. Hickman, while not identified by name in the policy, is recognized as a borrower under the policy terms. The insurance policy provides insurance for up to a total of $102,600 — more than the outstanding amount of the mortgage — and states that SAFECO will pay the “greater of’ the “amount of indebtedness” or “the replacement cost of the building.” Amounts payable in excess of Guaranty’s interest “will be paid to the ‘borrower.’ ” In addition, the insurance policy includes $8,550 in coverage for personal property in which Guaranty had no insurable interest. In the case of personal property, the policy provides that SAFECO “will adjust all losses with the ‘borrower’ ” and “will pay the ‘borrower.’ ” The borrower also has rights under the policy, as a claimant, to seek arbitration of the appraisal of a loss covered by the policy if he disagrees with the amount of loss determined by SAFE-CO. We conclude that these provisions of the insurance contract establish that Guaranty intended to give Hickman the benefit of some of the promised insurance proceeds; therefore, we hold that Hickman is a third-party beneficiary to the contract between Guaranty and SAFECO.

Hickman also urges us to consider some of the surrounding circumstances that further indicate the contracting parties’ intent to give Hickman the benefit of the insurance contract. Beginning in March of 2000 and each year thereafter, Guaranty (or its predecessor) provided Hickman with written notice that it had obtained insurance “to protect our mutual interest in the property.” In addition, the premiums for the insurance coverage obtained by Guaranty were paid from an escrow account funded by Hickman. Finally, SAFECO paid Guaranty an amount in excess of Guaranty’s interest and Guaranty paid that excess to Hickman.' These facts certainly support our conclusion that Hickman is an intended third-party beneficiary under the contract, but because we conclude that the language of the contract clearly indicates an intent to benefit Hickman, we do not rely on this extrinsic evidence to reach our holding.

We reverse summary judgment and remand for further proceedings in accordance with this opinion.

Reversed and remanded.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

      . From the complaint it appears Hickman and his wife are co-owners of the home. However, because only Hickman is named on the complaint, for purposes of this opinion we refer only to Hickman.

      . SAFECO initially filed an answer to Hickman's complaint and the SAFECO logo appears on the policy. However, in an amended answer SAFECO asserted that General Insurance Company of America (GICA) issued the insurance policy to Guaranty. The letters sent to Hickman by Guaranty and its predecessor identify GICA as the insurance company. In this opinion, we will refer to SAFECO and GICA collectively as "SAFE-CO.”

      .The district court also dismissed the complaint. However, because Guaranty was not included in the motion for summary judgment and the district court did not address Hickman's claim against Guaranty in its memorandum, the court of appeals reversed the dismissal of the complaint and remanded to the district court the issue of Hickman’s claim against Guaranty. Hickman v. SAFECO Ins. Co. of Am., No. A03-2042, 2004 WL 1828870, at *5 (Minn.App. Aug. 17, 2004). The court of appeals’ reversal of the claim against Guaranty is not before us in this appeal.

      . The notice stated in part:
      In order to protect our mutual interest in the property, we have obtained coverage in accordance with the terms of your Loan AgreemenVMortgage or Deed of Trust. The premium amount for this coverage that we have ordered will be charged to your escrow account. * * *.
      PLEASE NOTE THIS IS NOT A HOMEOWNERS POLICY. * * * NO ATTEMPT WAS MADE TO DUPLICATE ANY INSURANCE YOU MAY HAVE HAD IN THE PAST. THE INSURANCE COVERAGE WE HAVE OBTAINED MAY BE MORE EXPENSIVE, MAY NOT BE ENOUGH TO COVER YOUR LOSS AND PROVIDE LESS COVERAGE THAN YOU COULD OBTAIN FROM AN AGENT OR COMPANY OF YOUR CHOICE.

        * * * We encourage you to obtain an acceptable replacement policy from an agent or company of your choice.
      The notice also indicated that the insurance coverage was obtained in the amount of $85,500 for the house itself, $8,550 for personal property, and $8,550 for "other structures.” The $855 premium for this insurance was paid from a real estate tax and insurance escrow account established with funds paid by Hickman with his monthly mortgage payments.

      . The complaint also alleged that Guaranty had failed to apply the amount it received from SAFECO/GICO to the Hickmans' mortgage and failed to satisfy the mortgage. Guaranty subsequently applied the insurance proceeds to the mortgage.

      . Prior to Cretex, Minnesota followed the test outlined in the First Restatement that distinguished between ''donee'' and "creditor” beneficiaries. Cretex, 342 N.W.2d at 138-39. The Second Restatement eliminated this distinction in favor of a single category of "intended” beneficiaries. Both "donee” and "creditor” beneficiaries are encompassed by the term "intended” beneficiaries. Restatement (Second) of Contracts § 302, reporter’s note at 445.

      . Under the Second Restatement, the objective manifestation of intent controls, not the parties’ subjective intent. 13 Williston on Contracts § 37:8 at 68-69 (4th ed. 2000); Pub. Serv. Co. of N.H. v. Hudson Light & Power Dept., 938 F.2d 338, 342 (1st Cir.1991); see also Johnson v. Holmes Tuttle Lincoln-Mercury, Inc., 160 Cal.App.2d 290, 325 P.2d 193, 197 (2d Dist.1958) ("The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person.”) (citations omitted).

      .These policy provisions illustrate that performance under the policy is rendered, at least in part, directly to Hickman. Therefore, the respondent and the court of appeals, reasoning that Hickman is not a third-party beneficiary because performance is not rendered directly to him under the insurance policy, are factually incorrect. See Hickman, 2004 WL 1828870, at *5. In addition, this argument is not legally sound because performance need not be rendered directly to the intended beneficiary. Restatement (Second) of Contracts § 302, cmt. a ("neither promisee nor beneficiary is necessarily the person to whom performance is to be rendered, the person who will receive economic benefit, or the person who furnished the consideration”); see also Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83 (1981) (stating that "[cjontracts for the benefit of a third party are enforceable without any requirement that the promisor's performance be rendered directly to the intended beneficiary.”); Williston § 37:7 at 55. In Buchman Plumbing Co. v. Regents of the University of Minnesota, 298 Minn. 328, 335, 215 N.W.2d 479, 484 (1974), applying the First Restatement test we stated that "if the performance is directly rendered to the prom-isee, the third party who also may be benefited is an incidental beneficiary with no right of action,” but noted in a footnote that a comment to the first Restatement of Contracts “suggests that this distinction is not always determinative.” Buchman Plumbing Co., 298 Minn. at .335 n. 3, 215 N.W.2d at 484 n. 3.


author: ANDERSON, PAUL H., Justice.

text:
    Vernon Neal POWERS, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-2298.
    Supreme Court of Minnesota.
    May 5, 2005.

      Vernon Powers, Stillwater, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, Patrick Flanagan, Mower County Attorney, Austin, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

A Mower County jury found appellant Vernon Neal Powers guilty of multiple counts of first- and second-degree murder for robbing and causing the death of Juan Ramirez and Raul Gutierrez, and first-degree assault for shooting Benjamin Hernandez. Powers was convicted and sentenced to two mandatory life sentences for the two first-degree premeditated murder convictions and a presumptive sentence of 86-months for the first-degree assault conviction, all three sentences to run consecutively. On direct appeal, we affirmed Powers’ convictions. State v. Powers, 654 N.W.2d 667, 672 (Minn.2003). We subsequently affirmed the postconviction court’s denial of Powers’ first petition for postcon-viction relief. Powers v. State, 688 N.W.2d 559, 560 (Minn.2004). Powers then filed this second petition for postconviction relief. The postconviction court, determined that all issues raised in this second petition could have been raised either in his direct appeal or in his first petition for postcon-viction relief and denied the petition without a hearing. We affirm.

A detailed -description of the underlying facts of this case can be found at State v. Powers, 654 N.W.2d 667 (Minn.2003). On direct appeal, we affirmed Powers’ convictions and denied relief for his claims stemming from: (1) the joinder of his trial with that of two codefendants and -the district court’s failure to grant midtrial severance; (2) the court’s limitations on testimony in a Schwartz hearing; (3) alleged prosecutorial misconduct; (4) alleged ineffective assistance of trial counsel; (5) the right to an impartial jury and an adequate voir dire; and (6) Powers’ absence at three hearings. Id. at 672. In Powers’ appeal to us on his first petition for postconviction relief, he essentially raised two issues. First, he argued that he was prejudiced by the district court’s refusal to sever his trial from that of his codefendants. Powers, 688 N.W.2d at 561. Second, he claimed that his Fifth and Sixth Amendment rights, under the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated when the district court imposed consecutive sentences rather than concurrent sentences. Powers, 688 N.W.2d at 561. The postconviction court denied the petition, without a hearing, holding that all of Powers’ arguments were procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). We - affirmed. Powers, 688 N.W.2d at 562.

On October 26, 2004, Powers filed this second postconviction petition pro se. In this second petition, Powers appears to argue that CRIMJIG 11.02 and 11.03 are unconstitutional, that the district court unconstitutionally “directed” his verdict at sentencing because the first-degree premeditated and second-degree unintentional murder offenses are “incompatible,” that the complaint, indictment, and charges were legally insufficient, and that he was unconstitutionally sentenced under Minn. Stat. § 609.05 (2004). The postconviction court denied the petition without a hearing, holding that all of Powers’ arguments were procedurally barred under Knaffla, and no exceptions applied. Powers then appealed to our court.

In Minnesota, a criminal defendant is permitted to seek postconviction relief under Minn.Stat. § 590.01, subd. 1 (2004). A petitioner seeking postconviction relief bears the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence. Minn.Stat. § 590.04, subd. 3 (2004). To meet that burden, a petitioner’s allegations must be supported by more than mere argumentative assertions that lack factual support. Henderson v. State, 675 N.W.2d 318, 322 (Minn.2004).

We must decide whether the postconvietion court abused its discretion when it summarily denied Powers’ second postconvietion petition. “On appeal from a summary denial of postconvietion relief, we examine whether sufficient evidence exists to support the postconvietion court’s findings and will reverse those findings only upon proof that the postconvietion court abused its discretion.” Ives v. State, 655 N.W.2d 633, 635 (Minn.2003). A postcon-viction court must hold an evidentiary hearing unless the petition and the files and records of the proceeding conclusively show that the petitioner is not entitled to relief. Minn.Stat. § 590.04, subd. 1 (2004); see also Ives, 655 N.W.2d at 635; Roby v. State, 531 N.W.2d 482, 483 (Minn.1995). An evidentiary hearing is not required unless there are material facts in dispute that must be resolved to determine the post-conviction claim on its merits. See Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). The court may summarily deny a second or successive petition for similar relief made by or on behalf of the same petitioner. Minn.Stat. § 590.04, subd. 3.

Generally, once a direct appeal has been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconvietion relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. The two exceptions to the general Knajfla rule, allowing for postconvietion relief even if the petitioners claims could have and should have been raised on direct appeal, are: (1) where a novel legal issue is presented; or (2) where the interests of fairness require relief. Washington v. State, 675 N.W.2d 628, 630 (Minn.2004). With respect to the first exception, a claim must be so novel that its legal basis was not reasonably available to petitioner at the time the direct appeal was taken. King v. State, 649 N.W.2d 149, 156 (Minn.2002). For the second exception to apply, the petitioner must not have “deliberately and inexcusably” failed to raise the issue on direct appeal. Greer v. State, 673 N.W.2d 151, 155 (Minn.2004). Claims decided in the interests of fairness and justice also require that the claims have substantive merit. See King, 649 N.W.2d at 157-58.

In Powers’ second postconvietion petition, he claims that: (1) CRIMJIG 11.02 and 11.03 are unconstitutional as violative of due process because they “relieve[ ] the states [sic] burden of proving intent,” (2) the district court unconstitutionally directed his verdict by sentencing him to first-degree premeditated murder because it was impossible for the jury to find him guilty of both first-degree premeditated murder and second-degree unintentional murder, which he claims are “incompatible offenses in which the elements within legally conflict,” (3) his indictment was legally insufficient because it supposedly lacked some essential information relating to the charges, and (4) he was unconstitutionally sentenced under Minn.Stat. § 609.05 because the indictment did not include the particular subdivision of section 609.05 under which he was charged. With regard to the last two arguments, Powers asserts that the indictment was insufficient because it “completely fails to charge the statue [sic], definition, and essential elements of the joint offense,” and that he was “unconstitutionally sentenced under Minn.Stat. § 609.05 based on the facts of the uncertainty and non-clarity in the format that was used.”

We conclude that all four of Powers’ arguments for relief are barred under Knaffla. They were all known or knowable at the time of Powers’ direct appeal; moreover, neither of the two exceptions to the Knaffla rule is applicable. None of the four arguments presents a novel legal issue. Further, Powers has presented no new evidence that would require the post-conviction court to consider the arguments raised in his second postconviction petition. As the postconviction court noted, Powers had the necessary information and resources available to him that would have allowed him to include in his first petition for postconviction relief the arguments he now presents in this petition. Finally, the interests of fairness and justice do not require relief. After a review of the petition and the record, files, and proceedings, we conclude that all of Powers’ claims in his second postconviction petition lack merit.

Accordingly, we hold that the postcon-viction court did not abuse its discretion when it summarily denied Powers’ second petition for postconviction relief.

Affirmed.

      . CRIMJIG 11.02 outlines the elements of premeditated first-degree murder, and 11.03 instructs that transferred intent can be used to satisfy the intent requirement in a premeditated first-degree murder charge. 10 Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 11.02, 11-.03 (4th ed. 1999).