author: MEIERHENRY, Justice. GILBERTSON, Chief Justice ZINTER, Justice

text:
    2005 SD 23
    Troy HAASE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 23190.
    Supreme Court of South Dakota.
    Argued Oct. 5, 2004.
    Decided Feb. 16, 2005.
    Rehearing Denied March 23, 2005.
    Steve Miller, Sioux Falls, South Dakota, Attorney for petitioner and appellant.
    Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Haase made his third application for a writ of habeas corpus concerning his 1988 conviction for kidnapping and rape. This application was dismissed by the trial court on procedural grounds. Haase appeals.

FACTS

[¶ 2.] Haase was convicted of kidnapping and rape in 1988. The conviction was affirmed by this Court on direct appeal. State v. Haase, 446 N.W.2d 62 (S.D.1989). In 1991 Haase filed his first application for a writ of habeas corpus raising numerous issues, including ineffective assistance of trial and appellate counsel. His court appointed attorney reviewed the application and relevant records. After her review, she wrote a letter to the judge stating that no viable or colorable habeas corpus claims existed and there was no basis for a hearing. Subsequent to receiving the letter, the circuit court denied the writ stating: “That based upon the investigation of petitioner’s attorney there are no issues, factual or legal, which require that this court schedule and hold a hearing upon the petitioner’s allegations.” (Emphasis added.) Haase’s certificate of probable cause was also denied by both the circuit court and this Court.

[¶ 3.] Seven years after Haase’s first habeas application was denied, Haase filed a second habeas application. His initial pro se application asserted the same grounds as his first habeas application in addition to a new ground concerning the Reiman/Curtis test. An amended application dropped the grounds that were presented in the first habeas application and asserted only the new Reiman/Curtis issue. The amended application was denied on two procedural grounds: first, because of prejudice to the state because it was filed more than five years after the judgment; and second, because Haase failed to prove reasonable cause for not raising the Reiman/Curtis issue in his first habeas application. See SDCL 21-27-3.2; SDCL 21-27-16.1. Denial on these procedural grounds resulted in Haase still not having had a judge review the merits of any of his habeas issues.

[¶4.] The appeal now before us involves Haase’s third application for writ of habeas corpus. His only asserted ground for relief in this third habeas application is ineffective assistance of his second habeas counsel. Haase alleges his attorney was ineffective because he failed to appeal the denial of his second habeas petition within the required time. Consequently, he has been procedurally barred from state appellate review. Further, he has been procedurally barred from filing a federal habeas petition because he did not appeal in state court. In an effort to overcome these procedural bars, Haase’s current habeas application seeks a new opportunity to appeal the denial of his second habeas application.

DECISION

[¶ 5.] The propriety of this third habeas and the remedy it seeks is clearly questionable. We have often explained that habeas is a “collateral attack on a final judgment.” Knecht v. Weber, 2002 SD 21, ¶ 4, 640 N.W.2d 491, 494 (citations and quotations omitted). This habeas makes no collateral attack on the final criminal trial judgment. However, the facts of this case present a unique and troubling situation. No judge has ever made an independent review of any of Haase’s grounds for habeas relief. Haase has suffered this fundamental injustice through no fault of his own but, rather, through the mistakes of prior counsel and courts. Now, as a result of various proee-dural barriers, it is unlikely that his habe-as grounds could ever be reviewed by a judge on their merits. Therefore, under the unique facts of this case, we believe it is in the best interests of justice and judicial efficiency to remand this case back to the trial court in order for the court to proceed directly to the merits of Haase’s habeas claims, thereby providing Haase with a judicial determination of the merits of his claims and circumventing the procedural purgatory within which Haase now finds himself. Cf. People v. Gaines, 105 I11.2d 79, 85 IlLDec. 269, 473 N.E.2d 868, 875 (1984) (“The strict application of the doctrine of res judicata may be relaxed, however, where fundamental fairness so requires.”) (citations and quotations omitted). Therefore, we remand to the trial court for a new hearing and instruct it to consider any and all of Haase’s asserted grounds for habeas relief on their merits.

[¶ 6.] SABERS and KONENKAMP, Justices, concur.

[¶ 7.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.

GILBERTSON, Chief Justice

(dissenting).

[¶ 8.] The Court ascertains the only issue in this “third habeas is ineffective assistance of his second habeas counsel.” A habeas corpus proceeding is a civil action which exists solely under statutes passed by our legislature. Based on my dissent in Jackson v. Weber, 2001 SD 30, 2001 SD 136, 637 N.W.2d 19, I would affirm the trial court herein. There is no statutory basis, decades after the fact, to retroactively incorporate the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard into our ha-beas corpus statutes. Jackson, 2001 SD 30, ¶ 29, 637 N.W.2d at 25-26 (citing Krebs v. Weber, 2000 SD 40, ¶ 7-9, 608 N.W.2d 322, 324-5).

[¶ 9.] The South Dakota habeas corpus remedy extends only as far as the language used by our legislature allows. Co-well v. Leapley, 458 N.W.2d 514, 517 (S.D. 1990). SDCL 21-27-4 requires the appointment of counsel for indigent persons seeking habeas relief. Under SDCL 23A-40-1 to -20, counties are required to provide counsel to indigent defendants by establishing a public defenders office, maintaining a systematic court appointed process using licensed attorneys, or contracting for such services with attorneys licensed to practice law in South Dakota.

[¶ 10.] The majority of states that provide court appointed counsel for indigent defendants on habeas review have held that Strickland standards do not apply to counsel on habeas. For example, Texas courts have held that competency is judged by the statutory standards within the habeas and criminal statutory schemes, rather than by the higher standard required for trial and appellate counsel under Strickland. Ex parte Graves, 70 S.W.3d 103, 114 (Tex.Crim.App.2002). The Texas habeas statutory scheme requires the appointment of “competent counsel” for defendants in death penalty cases. Tex Crim Proc Code Ann 11.071 § 2(a) (2004). However, Texas courts have defined the term “competent” from within the statutory scheme itself, rather than grafting on the Strickland requirements. Graves, 70 S.W.3d at 114. That court held that the statutory scheme requires competency at the time of appointment and throughout the representation as judged by the counsel’s qualifications, experience and abilities. Id. That court held that if it grafted the Strickland standard onto the Texas habeas corpus scheme, it would be overriding the clear and unambiguous language of the legislature, and guaranteeing an endless and repetitious supply of resurrected writs that had previously been denied. Id. at 115. See also Baum v. State, 533 N.E.2d 1200, 1201 (In. 1989) (adopting the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, nothing requires judging his performance by the rigorous standard set forth in Strickland).

[¶ 11.] We now find ourselves among only a handful of states that apply Strickland standards to the performance of counsel in habeas review, three of which have found some textual justification within their respective statutory schemes or constitutions. See Grinols v. State, 10 P.3d 600, 604 (Alaska Ct.App.2000); In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 748 (Ca.1993); Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955, 957 (Id.1981). The remaining few, including South Dakota, rely on the “matter of common sense” approach without regard to their respective statutory schemes, or merely graft on the Strickland standard in the interest of justice. State v. Rue, 175 N.J. 1, 811 A.2d 425 (N.J.2002); Commonwealth v. Priovolos, 552 Pa. 364, 715 A.2d 420 (1998); State v. Flansburg, 345 Md. 694, 694 A.2d 462 (1997); Dunbar v. State, 515 N.W.2d 12 (IA1994); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).

[¶ 12.] The legislature has clearly stated that admission to the South Dakota bar is what is required for competency on ha-beas review. The legislature obviously intended that the competency of habeas counsel be established at the appointment stage, rather than examining counsel’s final product of representation after the fact. It is not the role of this Court to supplant its own definition of competency in light of the plain and unambiguous language in SDCL 23A-40-7.

ZINTER, Justice

(dissenting).

[¶ 13.] I disagree with the Court’s remedy that sets aside all statutory requirements of the Habeas Corpus Act and permits Haase to proceed with all substantive claims he asserts for habeas relief. Under Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19, Haase’s remedy is limited to pursuing an appeal of Habeas # 2 if he can establish ineffective assistance of counsel in that proceeding. However, Haase failed to establish entitlement to even that limited remedy because he failed to show prejudice from attorney Thompson’s failure to appeal (a showing that Haase would have succeeded on appeal of Habeas # 2). Because Haase failed to meet the requirements for habeas corpus relief, I would affirm the trial court’s judgment dismissing this proceeding (Habeas # 3).

I.

[¶ 14.] Initially, I part company with the Court’s decision to summarily remand and allow Haase to proceed with “all of [his] asserted grounds for habeas relief on their merits” simply because this Court believes that Haase is in “procedural purgatory.” Supra ¶ 5. By fashioning a remedy that allows Haase to “circumvent” all procedural requirements, the Court has judicially abrogated important statutory requirements of the Habeas Corpus Act. In my view, this disposition is unprecedented. It also provides Haase with a remedy that he acknowledges he is not entitled to.

[¶ 15.] Haase does not seek this remedy. In fact, he acknowledges that he may not ignore the procedural statutes in the Habeas Corpus Act. In his reply brief, Haase candidly concedes that his only remedy and the only thing he is seeking in this, his third successive habeas corpus action, is “the right, because of ineffective assistance of counsel, to seek appellate review of the adverse procedural ruling in Habeas # 2” (dismissed on the procedural grounds of “undue delay” and the failure to establish “cause and prejudice”). Haase further acknowledges that if the statutory, procedural barriers are left intact or are affirmed on appeal, it “will prevent [his] substantive claims (in Habeas # 1 and Ha-beas # 2 [and trial]) from ever being reached, by any court, anywhere.” Nevertheless, Haase concedes that he may not have what this Court has ordered: that is, the ability to skip all procedural requirements of the Habeas Corpus Act and proceed directly to the merits of any alleged error. He states:

Haase does not seek the right to have a new habeas trial court re-decide the same issues [that were considered in Habeas # 1 and # 2]. Rather, Haase has always recognized the obvious — those issues are dead in the water unless he can win the right to seek an appeal of that earlier loss [in Habeas # 2], That is the only remedy remaining for Haase.

Thus, as Haase himself concedes, should he prevail in this habeas proceeding, his sole remedy is the right to seek appellate review of Habeas # 2.

[¶ 16.] Haase’s concessions are in accord with this Court’s precedent. In Loop v. Solem, 398 N.W.2d 140, 143 (S.D.1986), this Court held that when the “claim is one of general, overall ineffectiveness that pervaded the entire appeal, the appropriate remedy would be to grant the defendant a new appeal.” (citation omitted). Because this is Haase’s sole remedy, I cannot agree with the Court’s overly broad disposition. We should not forget that under the Court’s newly announced remedy, any time a future habeas petitioner alleges “procedural purgatory,” he may now, in a second, third, or further successive petition, ignore all procedural statutes and proceed directly to the merits of any alleged error. This result cannot be reconciled with our duty to apply ■ statutory restrictions, whether procedural or substantive, that the Legislature has enacted for habeas corpus relief.

II.

[¶ 17.] In addition to my disagreement with the Court’s willingness to abrogate statutory requirements, I also believe that the trial court’s dismissal of this third ha-beas proceeding should be affirmed. Even assuming that Thompson’s failure to appeal Habeas # 2 constituted ineffective assistance of counsel, Haase failed to establish prejudice from that failure. As Judge Lieberman specifically noted, Haase did not demonstrate prejudice from Thompson’s representation in the second habeas action because Haase did not show that the appeal would have been successful.

[¶ 18.] Haase concedes that generally, prejudice is required to be shown. In Loop, this Court stated that “[b]efore a defendant succeeds on an ineffective assistance of counsel claim, he must normally fulfill the two-fold test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 142 (emphasis in original). That test requires a showing of both ineffective assistance of counsel and prejudice. Id.

[¶ 19.] The requirement of prejudice means that to prevail in this proceeding, Haase must normally establish that he would have succeeded at all previous habe-as proceedings, including the original trial. As this Court stated in Jackson, “ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually be directed to error in the original trial or plea of guilty.” 2001 SD 136,17, 637 N.W.2d at 23.

[¶ 20.] However, Haase relies on a Loop exception that applies in cases, like Habeas # 2, where there has been a failure to take an appeal. Loop recognized that a failure to appeal is an “[a]ctual or constructive denial of the assistance of counsel altogether [and] is legally presumed to result in prejudice.” 398 N.W.2d at 142. Consequently, if applicable, this presumption negates the need for a habeas corpus petitioner to make a preliminary showing that he was prejudiced as a result of his ineffective assistance of counsel. Id. Haase relies upon this exception, arguing that he was entitled to proceed through Habeas # 3 without the usual requirement of showing prejudice from the failure to appeal Habeas # 2.

[¶ 21.] However, Haase’s reliance upon the Loop exception is misplaced. Loop involved a failure to effectively prosecute a direct appeal following trial. Unlike Loop, this ease involves an attorney’s failure to appeal from a second successive collateral attack upon the original trial judgment. This distinction is important for two reasons. First, the scope of review is limited in habeas proceedings. “The scope of review is limited in a state habeas corpus proceeding because the remedy is in the nature of a collateral attack upon a final judgment.” Gregory v. Solem, 449 N.W.2d 827, 829 (S.D.1989) (citation omitted).

[¶ 22.] Second, it must be remembered that Loop expressly indicated that the presumed prejudice exception was only necessary in “certain” cases where the likelihood of prejudice was so high that inquiry into the issue of prejudice was not worth the cost. Loop, 398 N.W.2d at 142.

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.... Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost.

Id. (citing Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696). However, successive habeas corpus actions are not the type of proceeding that warrant such a presumption of prejudice. They are not because habeas corpus is not a constitutional requirement. See Williams-Bey v. Trickey, 894 F.2d 314, 317 (8thCir.l990). More importantly, although it makes sense to afford a presumption of prejudice in failing to take a direct appeal, the need for such a presumption is significantly diminished when a habeas petitioner has already had the opportunity for judicial review at trial and on direct appeal. Finally, while the complete denial of counsel in a direct appeal makes prejudice “so likely that ease by case inquiry into prejudice is not worth the cost,” Loop, 398 N.W.2d at 142, that likelihood has certainly disappeared by the time a petitioner is prosecuting his third successive collateral attack. For example, in this case, three circuit judges and five Supreme Court Justices have reviewed this case on five prior occasions. Therefore, one cannot say that the presumption of prejudice remains so likely that a case by case review for prejudice is still not worth the cost. Rather, because this is Haase’s third successive collateral attack, the usual Strickland requirement of prejudice should be retained.

[¶ 23.] “On habeas review, the petitioner has the initial burden of proof.” Jackson, 2001 SD 136, ¶ 9, 637 N.W.2d at 22. Here, Judge Lieberman noted that Haase failed to meet his burden of showing of prejudice because he failed to establish that he would have succeeded had Attorney Thompson perfected an appeal in Ha-beas # 2. Because there is no dispute that Haase failed to meet that burden of establishing prejudice from the alleged ineffective assistance of counsel in Habeas #2, the trial court’s dismissal of Habeas # 3 should be affirmed.

      . The Reiman/Curtis test pertains to situations where a kidnapping occurs in conjunction with another crime. State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Reiman, 284 N.W.2d 860 (S.D.1979). In Reiman we stated: "We find it unreasonable to sustain a conviction for kidnapping which is unsupported by evidence aside from the acts incidental only to another crime.” Id. at 873. "[Ujnder Reiman a kidnapping can be charged when 1) the kidnapping is not an essential element of some other clearly identified crime and 2) the victim is exposed to an increased risk of harm because of the kidnapping.” State v. Running Bird, 2002 SD 86, ¶ 23, 649 N.W.2d 609, 614 (citations and quotations omitted).

      . SDCL 21-27-4 provides:
      If a person has been committed, detained, imprisoned, or restrained of his liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ.

      . SDCL 23A-40-7 provides in relevant part:
      The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in § 23A-40-6. They shall provide this representation by any or all of the following:
      (1) Establishing and maintaining an office of a public defender;
      (2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
      (3) Contracting with any attorney licensed to practice law in this state.

        in those counties which have established an office of public defender, any proceedings after judgment may be assigned to the public defender.

      . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      Haase points out that this proceeding involves an ineffective assistance of counsel claim arising from the failure to appeal the judgment in Habeas # 2. He further points out that under Loop v. Solem, 398 N.W.2d 140, 142 (S.D.1986), the failure to appeal involves the type of error that does not normally require a showing of prejudice. Although Loop did eliminate that requirement in direct appeals from the underlying trial, this case involves a failure to appeal from a collateral attack; i.e., Haase’s second petition for habeas corpus. Under these circumstances, Loop did not eliminate Haase’s obligation to establish prejudice from the failure to appeal the judgment denying relief in Habeas # 2. Loop did not so hold, and prejudice remains a requirement in successive habeas corpus proceedings alleging ineffective assistance of counsel. See infra ¶ 22.

      . The following statutes have been abrogated.
      SDCL 21-27-3.2:
      An application under this chapter may be dismissed if it appears that the state or the applicant’s custodian has been prejudiced in its ability to respond to the application by delay in its filing, unless the applicant shows that the application is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances causing the prejudice occurred. It shall be presumed that the state or the applicant’s custodian has been prejudiced if the application is filed more than five years after signing, attestation and filing of the judgment or order under which the applicant is held. This presumption is rebuttable pursuant to § 19-11-1.
      SDCL 21-27-16.1:
      All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental, or amended application.
      SDCL 21-27-5:
      The court or judge to whom the application for a writ of habeas corpus is made, shall forthwith award the writ, unless it shall appear from the application itself or from any document annexed thereto, that the applicant can neither be discharged nor admitted to bail, nor in any other manner relieved.

      .The Court’s only authority for its novel new procedure is People v. Gaines, 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868, 875 (1984). However, Gaines did not adopt such a rule. Gaines merely stated that if fundamental fairness requires, res judicata will not be used to bar litigation of claims on habeas review that could have been raised on direct appeal. However, such a rule is inapplicable in this jurisdiction because our Legislature, by the enactment of SDCL 21-27-16.1, has specifically required that the doctrine of res judicata be applied in habeas proceedings. See supra, n. 5.

        More importantly, because Gaines only eliminated use of the doctrine of res judicata, Gaines is no authority for the proposition that all other procedural requirements of' the Ha-beas Corpus Act may be ignored. Thus, SDCL 21-27-3.2, requiring the dismissal of stale claims, would remain in effect even if the Gaines case were applied. Ultimately, the doctrine of res judicata is one thing, but sua sponte setting aside all other statutory requirements any time a court perceives them to be unfair is an abdication of our duty to apply legislative enactments. It also exceeds our limited constitutional authority to interpret legislative enactments in accordance with the Constitution.

      . In his brief, and at oral argument, Haase has justified his decision to initially delay his showing of prejudice from Habeas # 1 and the trial on the ground that it would conserve judicial resources. Haase concedes that he may not even get to those proceedings until he establishes the right to appeal Habeas # 2. Considering the procedural posture of this case, I agree that it was appropriate to conserve judicial resources until the right to appeal Habeas # 2 was established in this proceeding. Therefore, while it was appropriate for Haase to withhold a showing of prejudice from Habeas # 1 and the trial in Habeas # 3, Haase was required to show, at the very least, that he was prejudiced in Habeas # 2 (the most recent proceeding in which he alleged he received ineffective assistance of counsel). See infra ¶ 22.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. SABERS, Justice

license: Public Domain

text:
    2005 SD 22
    STATE of South Dakota, Plaintiff and Appellee, v. David Lynn ANDERSON, Defendant and Appellant.
    No. 23225.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided Feb. 16, 2005.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Rick L. Ramstad of Wilka & Ramstad, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

      .Anderson also challenged the validity of the indictment and argued he was entitled to a mistrial because a State witness made an inadvertent reference to Anderson's parole status. We held neither the amendment of the indictment, nor the witness’s reference prejudiced Anderson’s rights and upheld the convictions. Anderson II, 1996 SD 46, ¶ ¶ 17-24, 546 N.W.2d at 400-01.

   GILBERTSON, Chief Justice.

[¶ 1.] David Lynn Anderson appealed the denial of a second motion to correct his 125-year sentence on a 1995 conviction for vehicular homicide. Defendant’s sentence was enhanced under the habitual offender provision after he pleaded guilty to a Part II Information that included a 1988 felony conviction for grand theft, and two 1990 felony drug convictions. Defendant contended his sentence was illegally enhanced using three prior felony convictions under SDCL 22-7-8.1, rather than two prior felony convictions under SDCL 22-7-7. Defendant argued his two 1990 felony drug convictions stemmed from one transaction, and therefore could not be counted as two separate convictions for purposes of enhancing his sentence under SDCL 22-7-8. 1. Defendant requested his illegal sentence be corrected using two felony convictions. In the alternative, Defendant argued his guilty plea to the Part II habitual offender information must be set aside due to a manifest injustice, and that he be permitted to plead anew. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 22, 1989, David Lynn Anderson sold a quantity of methamphetamine to an undercover police officer at the Alpine Inn in Sioux Falls, South Dakota. The agreed upon price was $275 for one-eighth of an ounce. After the sale was concluded and the money and methamphetamine had been exchanged, Defendant contacted the undercover officer and explained that he had inadvertently given the undercover officer one-fourth of an ounce for $275 instead of the one-eight of an ounce as negotiated. The undercover officer agreed to meet with Defendant and provide an additional $250. Defendant also informed the undercover officer that he had additional methamphetamine for sale and would be able to provide it at their meeting set for the next day at the Holiday Inn.

[IT 3.] On September 23, after the undercover officer arrived at Defendant’s hotel room at the Holiday Inn, the undercover officer gave Defendant the additional $250 in cash as final payment for the one-quarter ounce of methamphetamine purchased on September 22. Defendant then showed the undercover officer four plastic bindles each purportedly containing one-eighth of an ounce of methamphetamine and offered the drugs for $250 per one-eighth ounce. The undercover officer told Defendant he would have to retrieve his money from his car, and left the hotel room telling Defendant he would return with the money. After the undercover officer left the room, Defendant was arrested.

[¶ 4.] Defendant was charged with 1) distribution of a controlled substance on September 22, 1989; 2) possession of a controlled substance on September 22, 1989; and, 3) possession of a controlled substance with intent to distribute on September 23,1989. Defendant was represented by Patrick Schroeder, of the Minnehaha County Public Defender’s Office. Defendant pleaded guilty to Count 1, distribution of a controlled substance on September 22, 1989, and Count 3, possession of a controlled substance with intent to distribute on September 23, 1989. Defendant was sentenced to seven years for the distribution charge, and five years for the possession with intent to distribute charge. The two sentences were ordered to be served consecutively, with the seven year sentence to be served first. At the sentencing hearing, Judge Gene Paul Kean, Second Judicial Circuit, specifically noted that he was imposing the two sentences consecutively as this was a case of two different crimes occurring on two different occasions.

[¶ 5.] In 1995, Defendant was convicted of vehicular homicide and vehicular battery for the death of Galen Barta and injury to one of his sons in an automobile accident. State v. Anderson, 1996 SD 46, ¶ 6, 546 N.W.2d 395, 397 (hereinafter Anderson II). On Sunday, October 2, 1994, Defendant was driving under the influence of alcohol at speeds of 86 to 100 miles per hour in a 30-mile per hour zone on 10th Street in Sioux Falls, South Dakota. Id. ¶2. After hydroplaning on the wet pavement, crossing the centerline and colliding with the Barta car, Defendant fled the scene of the accident, leaving his passenger, his girlfriend Terese Paxton, and the occupants of the Barta car at the scene. Id.

[¶ 6.] Defendant was again represented by Patrick Schroeder of the Minnehaha County Public Defender’s Office. After his conviction before a jury on the vehicular homicide and vehicular battery charges, Defendant pleaded guilty to the Part II habitual offender information that indicated Defendant had three prior felony convictions, two based on the convictions in Anderson I, and one from an unrelated 1988 felony conviction for grand theft in Yankton County. In the findings of fact on the Part II habitual offender information, Judge Judith Meierhenry, Second Judicial Circuit, held that the two 1990 drug convictions in Anderson I were for separate offenses committed on separate dates, and therefore the convictions arose from separate transactions. Judge Meierhenry concluded the sentences and sentence enhancement in Anderson II were legal. Finally, the trial court imposed a 125-year sentence for the vehicular homicide conviction and a 15-year sentence for the vehicular battery conviction to run concurrently, but consecutively to Defendant’s remaining sentence for the parole violation on the two 1990 Anderson I drug convictions used to enhance the conviction in Anderson II. Id. ¶ 6, 546 N.W.2d at 397.

[¶ 7.] In 1996, Defendant first challenged his sentence in Anderson II on direct appeal. Anderson II, 1996 SD 46, ¶ 7, 546 N.W.2d at 397. Defendant contended the sentences constituted cruel and unusual punishment and were prohibited by the Eighth Amendment to the United States Constitution. Id. We affirmed Defendant’s convictions and affirmed the sentences. Id. ¶ 35, 546 N.W.2d at 403. We held the 125-year sentence for vehicular homicide, enhanced by three prior felony convictions, was not so excessive as to constitute cruel and unusual punishment. Id.

[¶ 8.] On July 26, 1996, Defendant filed a pro se petition for writ of habeas corpus seeking relief from his 1995 conviction, and counsel was appointed to assist him. (Anderson III). In his petition, Anderson alleged Patrick Sehroeder, his trial counsel in Anderson II, was ineffective when he failed to argue that the two drug convictions in Anderson I used to enhance the 1995 sentence in Anderson II were actually a single transaction, and therefore should have been counted as just one felony for enhancement purposes.

[¶ 9.] On, January 13, 1997 while his first habeas petition was working its way through the court system, Defendant challenged the enhancement of his sentence in circuit court by filing a motion to correct an illegal sentence. For purposes of the motion to correct illegal sentence, Defendant was represented by attorney Nichole Carper. Defendant contended the two drug convictions in Anderson I stemmed from a single transaction, and therefore could only be counted as one felony conviction for sentence enhancement purposes in Anderson II.

[¶ 10.] The. original trial judge in Anderson II, Judge Judith Meierhenry, reviewed the motion and orally ruled that the trial judge in Anderson I had correctly sentenced Defendant for two separate offenses that constituted two separate transactions. In her written conclusions of law entered on March 21, 1997, Judge Meier-henry noted it was clear from the Anderson I transcripts that Defendant was apprised of three separate drug charges against him, and that he was sentenced for two separate charges stemming from two separate transactions which occurred on September 22, 1989 at the Alpine Inn and on September 23, 1989 at the Holiday Inn. With regard to the Part II Information, Judge Meierhenry noted that Defendant had been similarly apprised that two separate felony convictions stemming from two separate transactions, along with the 1988 grand theft felony conviction, were used to enhance his sentence in Anderson II under SDCL 22-7-8.1.

[¶ 11.] Defendant’s 1996 habeas petition, Anderson III, was considered on its merits after the circuit court’s ruling on the motion to correct an illegal sentence was denied on March 21, 1997. On May 28, 1998 in a letter opinion, Judge William J. Srstka rejected the single transaction argument and issued a judgment and order quashing the writ of habeas corpus. In his letter opinion, Judge Srstka noted that the trial judge in Anderson II had held the two drug convictions in Anderson I were separate transactions. Judge Srstka deemed that the res judicata effect of the March 21, 1997 ruling on Defendant’s motion to correct an illegal sentence was sufficient to preclude habeas relief. Judge Srstka also noted that no prejudice resulted to Defendant in Anderson II when his trial counsel failed to advance the Anderson I single transaction argument, as the argument had no merit and was unlikely to succeed.

[¶ 12.] Defendant then appealed Judge Srstka’s order quashing the writ of habeas corpus to this Court. The second issue in Defendant’s brief to this Court was “the failure of Defendant’s [.Anderson II trial] attorney to challenge the double enhancement of his sentence by two prior convictions arising from the same transaction constituted ineffective assistance of counsel.” In fourteen pages of his brief, Defendant argued at length that attorney Schroeder was ineffective for failing to argue the single transaction theory, and that attorney Carper had also failed to properly argue the same theory at the hearing before Judge Meierhenry on the motion to correct illegal sentence. This Court summarily affirmed and expedited the habeas court’s judgment in an order dated March 29, 1999 and filed on April 21, 1999. Anderson v. Class, 590 N.W.2d 709 (S.D.1999)(Table). This Court noted “it is manifest on the face of the briefs and the record that the appeal is without merit[.]”

[¶ 13.] On May 18, 1999, Defendant filed a second state habeas (Anderson IV) in which he contended attorney Carper, who represented him on the 1997 motion to correct illegal sentence, was ineffective for failing to appeal Judge Meierhenry’s adverse ruling. The State argued Defendant’s new habeas corpus petition should be dismissed under SDCL 21-27-16.1, as Defendant had failed to raise all available grounds for relief in his first habeas proceeding, and the current claim had been available at the time of the first habeas action. Defendant argued Judge Kean in Anderson I, in the original trial on the drug charges, had never decided that the two drug crimes were separate transactions. Defendant also argued Judge Srstka in Anderson III, the first habeas corpus action, had never ruled on the merits of the sentence enhancement, and instead had relied on the res judicata effect of Judge Meierhenry’s ruling on the motion to correct illegal sentence filed and heard in 1997.

[¶ 14.] Judge Peter J. Lieberman, the Second Judicial Circuit, issued a provisional writ of habeas corpus that the State resisted, and scheduled a hearing on the State’s motion on April 12, 2000. Judge Lieberman took judicial notice of all underlying records, and reviewed the transcripts. Judge Lieberman rejected Defendant’s arguments, deeming them contrary to the records before him. Judge Lieberman concluded Judge Srstka found Defendant’s argument in Anderson III that attorney Schroeder was ineffective to be without merit, as the underlying single transaction argument itself was without merit and therefore no prejudice resulted to Defendant. Next, Judge Lieberman reviewed this Court’s summary disposition of Anderson III, noting that this Court found “no issues of weight or gravity or substance raised for them to respond to.” Judge Lieberman concluded by noting that the single transaction argument had been reviewed on its merits by four judges and five Supreme Court justices, all who found the argument to be meritless.

[¶ 15.] Defendant filed an appeal of Judge Lieberman’s order quashing the second writ of habeas corpus. Defendant argued that the single transaction argument from Anderson I was not effectively raised by attorney Schroeder in Anderson II, or by attorney Carper in the motion to correct illegal sentence, and that Judge Srstka had not ruled on the merits of the argument in Anderson III. This Court summarily affirmed Judge Lieberman in an order dated January 16, 2001.

[¶ 16.] On October 15, 2003, despite the lengthy list of judges and justices who had reviewed the ineffective assistance of counsel claim and the underlying single transaction argument, Defendant filed a motion to withdraw his guilty plea eight years after sentencing. Judge Gene Paul Kean held a hearing on that motion on December 15, 2003. A second motion to correct an illegal sentence was filed on February 11, 2004. Judge Kean held a second hearing on the two motions to once again consider Defendant’s argument that he was sentenced illegally under the habitual offender statute in Anderson II, when that trial court counted the two prior convictions in Anderson I as arising from two separate transactions.

[¶ 17.] In the alternative, Defendant argued that he should be allowed to plead anew to the Part II Information, as his plea was not voluntary and knowing as attorney Schroeder had indicated to Defendant that the State had only to prove Defendant was the same individual convicted of the 1988 and 1990 offenses. Defendant alleged his attorney was ineffective when he failed to advise Defendant that the State had to prove three separate felonies arising from three separate transactions. Defendant argued his attorney was also ineffective for failing to advance the single transaction argument for the 1990 drug convictions. Defendant argued a manifest injustice resulted from his attorney’s ineffective assistance of counsel. The trial court denied Defendant’s motion.

[¶ 18.] Defendant filed this appeal certifying the following issues:

1. Whether the circuit court erred when it held Defendant’s claims were barred as res judicata.
2. Whether Defendant was illegally sentenced in Anderson II when the trial court counted the two prior convictions in Anderson I as separate transactions when enhancing Defendant’s sentence.
3.Whether Defendant should be allowed to withdraw his guilty plea to the habitual offender charges in Anderson II when he was not advised that it was the State’s burden to prove beyond a reasonable doubt that his two convictions stemming from Anderson I were separate transactions.

STANDARD OF REVIEW

[¶ 19.] “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). Conclusions of law are reviewed by this Court under the de novo standard, giving no deference to the circuit court’s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 20.] Statutory construction is employed to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. State v. 1-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611).

ANALYSIS AND DECISION

[¶ 21.] Whether the circuit court erred when it held Defendant’s claims were barred as res judicata.

[¶ 22.] The doctrine of res judi-cata prevents the relitigation of claims that were pursued and litigated in prior proceedings, as well as those “issues which could have been properly raised and determined in a prior action.” Merchants State Bank v. C.E. Light, 458 N.W.2d 792, 794 (S.D.1990) (citing Bank of Hoven v. Rausch, 449 N.W.2d 263, 266 (S.D.1989)). Res judicata serves to bar further court action, including appeals, when four conditions are met:

(1) whether the issue decided in the former adjudication is identical with the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties were identical; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication.

Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)).

[¶ 23.] Defendant seeks to attack the legality of the sentence enhancement imposed on his 1996 Anderson II conviction, by challenging the use of his two prior drug convictions in Anderson I as separate transactions. Defendant argued that res judicata should not be applied in this case, as the merits of the separate transaction issue have never been addressed. Defendant contends that each of the courts that have reviewed his habitual offender enhancement issue have rendered their decisions by relying on res judicata for the purpose of judicial convenience, rather than reviewing the merits of the claim.

[¶ 24.] Defendant first appealed his sentence in Anderson II in 1996, contending that the sentence constituted cruel and unusual punishment. 1996 SD 46, 546 N.W.2d at 396. The issue of whether the sentence had been improperly enhanced using three prior felony convictions was never raised in Defendant’s first appeal in 1996. Defendant had the right to one appeal, and one appeal only from a final judgment of conviction. SDCL 23A-32-2. That appeal was exhausted in 1996. Defendant’s failure to raise the issue on appeal barred any further appeal on the issue, and left habeas corpus, a motion to correct an illegal sentence, or a motion to withdraw a guilty plea as possible avenues for post-conviction relief.

[¶ 25.] In 1997, Defendant challenged the enhanced sentence in his first motion to correct illegal sentence before Judge Meierhenry. That court reviewed the record and noted specifically that the 1990 drug convictions were for two separate offenses that occurred on two separate dates, and involved two separate quantities of methamphetamines. Judge Meierhenry correctly held that the issue was without merit, and denied the motion. Defendant did not appeal the holding of the circuit court.

[¶ 26.] Defendant’s first habeas corpus petition, Anderson III, was subsequently considered by the circuit court. In that petition, Defendant alleged his trial attorney in Anderson II, Patrick Schroeder, was not functioning as effective counsel within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when he failed to argue that the two drug convictions in Anderson I used to enhance the 1995 sentence in Anderson II were actually a single transaction. The habeas court reviewed the merits of Defendant’s claim, focusing on the charging document and the police officer’s report, which recorded the dates, times and details of the offenses. The habeas court noted that Count I was based on the activities of September 22, 1989 and Count 8 was based on the activities of September 23, 1989. Defendant’s claim was found to be without merit by the habeas court. That court noted that under the two-prong test in Strickland, Defendant was unable to show prejudice, as the single transaction argument lacked merit and was unlikely to prevail even if attorney Schroeder had attempted to use the theory to challenge the Part II Information. Finally, that court noted the preclusive effect of Judge Meierhenry’s ruling on the motion to correct illegal sentence, as the same single transaction issue was previously adjudicated. We summarily affirmed the ha-beas court.

[¶ 27.] Defendant next filed his second habeas petition, Anderson IV, contending his counsel, attorney Carper, was ineffective when she failed to argue the single transaction theory to Judge Meierhenry in Defendant’s first motion to correct illegal sentence. Defendant’s issue was the same as in his first habeas petition: trial counsel was ineffective for failing to argue that the 1990 drug convictions stemmed from a single transaction and were used to illegally enhance the 1995 Anderson II conviction. The only difference between the argument presented in Anderson III, the first habe-as petition, and Anderson IV, the second habeas petition, was that Defendant alleged that a different lawyer failed to properly make the same argument. The circuit court denied the motion after a thorough examination of the record. On appeal to this Court, we summarily affirmed the second habeas court.

[¶ 28.] Defendant filed a second motion to correct illegal sentence. That motion was denied by Judge Kean. Defendant now attempts to push his way into this Court once again, to have the same issue ruled upon — whether the Anderson I convictions should count as one or two felony convictions for purposes of enhancing the sentence in Anderson II.

[¶ 29.] The identical issue of whether the Anderson I drug convictions were a single transaction has been reviewed in two motions to correct an illegal sentence and in two habeas corpus petitions. There have been four judgments on the issue, two of which have been affirmed by this Court. In all four adjudicatory proceedings, the parties have been identical, the Defendant and the State. In all four prior proceedings, each judge has considered the facts of Anderson I in order to determine if the sentence in Anderson II was legally imposed, thus each of the lower courts have provided a full and fair opportunity to Defendant to litigate the issue. This Court has provided Defendant with two full and fair opportunities to review the single transaction argument, first as it pertained to the alleged ineffective assistance of counsel by attorney Schroeder and again as it pertained to the alleged ineffective assistance of counsel by attorney Carper.

[¶ 30.] Now, for the fifth time, Defendant attempts to litigate the same issue, between the same parties, for which four final judgments have been entered, and in which Defendant received four full and fair opportunities to litigate the issue. There is no doubt that there is absolutely no merit to Defendant’s contention that the two 1990 drug convictions constituted one single transaction. The issue is precluded from being addressed in any manner, in any state court in South Dakota by the doctrine of res judicata.

[¶ 31.] It is unnecessary for us to address Issues 2 and 3 given the preclusive effect of the prior adjudications of Defendant’s claims. However, for the benefit of the bench and bar we review the pertinent case law on separate transactions within the context of our habitual offender sentencing scheme.

[¶ 32.] SDCL 22-7-8.1 provides: If a defendant has been convicted of three or more felonies in addition to the principal felony and none of the prior felony convictions was for a crime of violence as defined in subdivision § 22-1-2(9), the sentence for the principal felony shall be enhanced by two levels. A defendant sentenced under this section is eligible for consideration for parole pursuant to § 24-15-5.

The habitual offender statutory scheme also provides:

A prior conviction may not be considered under either § 22-7-7 or 22-7-8 unless the defendant was, on such prior conviction, discharged from prison, jail, probation, or parole within fifteen years of the date of the commission of the principal offense. In addition, only one prior conviction arising from the same transaction may be considered.

SDCL 22-7-9 (emphasis added).

[¶ 33.] There is no definition in our criminal statutes or the parole statutes for “separate transactions.” However, our case law defines a separate transaction as a distinct separate act that is completed before the next act begins. State v. Pasek, 2004 SD 132, ¶ 29, 691 N.W.2d 301, 311 (citing State v. Sieler, 1996 SD 114, ¶ 18, 554 N.W.2d 477, 482). Cf. State v. Flittie, 425 N.W.2d 1, 2, (S.D.1988) (holding that the same exact post-murder conduct will not support convictions for both conspiracy to commit murder and accessory after the fact to murder). In Sieler we held a defendant could be convicted of kidnapping, second-degree rape, first-degree burglary, in addition to attempted first-degree murder and aggravated assault, as separate transactions, despite the fact that the crimes involved one victim, one location, and occurred over a three to four hour period. Sieler, 1996 SD 114, ¶ 17-19, 554 N.W.2d 477, 482. The fact that two or more criminal acts are “successive does not require the conclusion that they have merged.” Id. ¶ 18. (citation omitted).

[¶ 34.] Defendant was convicted of Count 1, distribution of a controlled substance for his acts on September 22, 1989. The conviction for Count 3, possession of a controlled substance with intent to distribute was based on Defendant’s acts on September 23, 1989. Defendant distributed a controlled substance on September 22, 1989, when the negotiations were concluded and the money and drugs changed hands at the Alpine Inn. On September 23, 1989, at the Holiday Inn, Defendant completed the acts necessary for Count 3, as he had four plastic bindles of methamphetamine in his hand, each purportedly containing one-eighth of an ounce that he offered for sale to the undercover police officer.

[¶ 35.] The fact that Defendant had mistakenly given the undercover officer one-fourth of an ounce of methamphetamine on September 22 and sought to obtain an additional $250 for the drugs on September 23 does not bind the two offenses together into one offense. The acts constituting distribution of a controlled substance were completed on September 22, prior to the start of the acts Defendant engaged in on September 23 that constituted possession with intent to distribute. The distinct separate acts that gave rise to the conviction on Count 1 were completed before the acts on which Count 3 was based began.

[¶ 36.] Affirmed.

[¶ 37.] KONENKAMP and ZINTER, Justices, concur.

[¶ 38.] SABERS, Justice, concurs in result.

[¶ 39.] MEIERHENRY, Justice, deeming herself disqualified, did not participate.

SABERS, Justice

(concurring in result).

[¶ 40.] I concur in result because it is settled law that these two drug convictions were separate transactions. SDCL 22-7-9. In fact, I would affirm and expedite the opinion under settled South Dakota law. SDCL 15-26A-87.1.

[¶ 41.] I agree that it is unnecessary to address Issues 2 and 3. Therefore, I see no reason to “review the pertinent case law on separate transactions within the context of our habitual offender sentencing scheme.” (See opinion, paragraph 31). Likewise, I would omit paragraphs 32, 33, 34 and 35 as unnecessary.

      . The 1990 drug convictions will be hereinafter referenced as Anderson I.

        . Levels of methamphetamine and marijuana metabolites were also identified in Andersons blood sample. Anderson II, 1996 SD 46, ¶ 5, 546 N.W.2d at 396.

      . In his 1997 habeas petition, Defendant also contended his trial counsel in Anderson II was ineffective for not preventing Anderson from giving an incriminating statement prior to trial to the attorneys of Galen Barta's estate in connection with a potential civil dram shop action.

      . SDCL 21-27-16.1 provides:
      All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental, or amended application.


author: SEVERSON, Presiding Circuit Judge.

text:
    2005 SD 25
    STATE of South Dakota, Plaintiff and Appellee, v. William J. JANKLOW, Defendant and Appellant.
    No. 23163.
    Supreme Court of South Dakota.
    Argued Nov. 16, 2004.
    Decided Feb. 23, 2005.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Edwin E. Evans, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, L.L.P., Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   SEVERSON, Presiding Circuit Judge.

[¶ 1.] William J. Janklow (Janklow) appeals from a jury verdict finding him guilty of reckless driving and second degree manslaughter for an August 16, 2003, collision which killed Randolph Scott (Scott). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] On August 16, 2003, Janklow was driving a white Cadillac south on Moody County Highway 13. He was traveling from Aberdeen, South Dakota to his home in Brandon, South Dakota after giving a speech at a county fair. Janklow’s chief of staff, Chris Braendlin (Braendlin) was a passenger in the vehicle. Meanwhile, fifty-five year old Scott and his friend, Terry Johnson (Johnson), were riding their motorcycles westbound on Moody County Highway 14.

[¶ 3.] Highways 13 and 14 intersect ten miles south of Flandreau, South Dakota. The intersection is controlled by stop signs for north-and southbound traffic on Highway 13. The east-and westbound traffic on Highway 14 does not have a stop sign at that intersection. The speed limit on both highways is 55 miles per hour. A corn field located northeast of the intersection blocked the view for southbound and westbound motorists approaching the intersection.

[¶ 4.] Approximately three or four miles north of the intersection, Janklow passed another vehicle traveling south on Highway 13. The driver of that vehicle testified that she was traveling approximately 55 to 60 miles per hour when she was passed by Janklow. She testified that, “he passed me as if I was standing still. I felt like I was parked on the side of the road and the car just went past real fast.” At approximately 4:40 p.m., Jank-low’s southbound vehicle and the westbound motorcycles ridden by Scott and Johnson converged at the intersection. Johnson safely passed through the intersection approximately 50 yards ahead of Scott. Scott’s motorcycle hit the side of Janklow’s vehicle. Scott was thrown from his motorcycle and was pronounced dead at the scene. Janklow’s vehicle came to a stop in the soybean field approximately 285 feet south of the intersection. There was extensive damage to the side and rear portion of Janklow’s vehicle.

[¶ 5.] Janklow was charged in Moody County with the offenses of failure to stop at a stop sign, speeding, reckless driving and second degree manslaughter. A jury trial commenced on December 1, 2003, in Flandreau. Janklow did not dispute that he failed to stop at the stop sign, nor did he dispute that he was driving in excess of the speed limit. However, there was conflicting testimony at trial as to his actual speed at the point of impact. The State’s expert estimated that Janklow was traveling 71 miles per hour and Scott was traveling 59 miles per hour at the point of impact. Janklow’s expert calculated Jank-low’s speed at 63 to 64 miles per hour at the point of impact.

[¶ 6.] In his defense, Janklow asserted that he was suffering from hypoglycemia at the time of the collision and did not consciously run the stop sign. Hypoglycemia results in the brain not getting the glucose it needs to function properly. Janklow is an insulin dependent diabetic. Janklow testified that he took a dose of insulin the morning of the accident, but that he had not eaten for at least eighteen hours prior to the collision. The experts offered by the defense testified that the effect of the insulin taken by Janklow would have peaked at the time of the collision. If he did not eat anything during the day to counteract the effect of the insulin, the experts opined that this would have resulted in low blood sugar or hypoglycemia.

[¶ 7.] Emergency personnel who arrived at the scene shortly after the collision testified that Janklow was asked about his diabetes and whether he had recently checked his blood sugar levels. Janklow told them that he had checked his blood sugar level earlier and that he had eaten earlier in the day. Janklow appeared to the emergency personnel and law enforcement to be distraught about the collision, but seemed alert and oriented with no difficulty speaking. Janklow indicated that he was fíne and refused medical attention. The defense offered evidence that Janklow was offered candy and a sugary drink after the collision and that hypoglycemia can be countered relatively quickly if a diabetic receives sugar. Several days after the collision, it was determined that Janklow suffered a fractured wrist and a closed head injury.

[¶ 8.] Several witnesses testified that immediately after the collision Janklow said that he went through the intersection because he was trying to avoid hitting a white car. Because the accident involved a fatality, law enforcement asked Janklow for a blood sample to determine his blood alcohol level. South Dakota Highway Trooper Jeff Lanning (Trooper Lanning) transported Janklow to the Flandreau hospital for the blood draw. The video camera in Trooper Lanning’s patrol car recorded, with Janklow’s knowledge, their conversation during the drive. The video was played for the jury at trial. On the tape, Janklow described approaching the intersection and slowing down for the stop sign when a white car came toward him from the east. Janklow told Trooper Lan-ning that he “gunned it” to avoid being hit by the white car and that he initially thought he had been hit by the white car. Eyewitnesses reported that the white car Janklow described was not in the intersection at the time of the collision.

[¶ 9.] In its case in chief, the State offered “other acts” evidence from Jennifer Walters (Walters), Deputy Tony Aas (Deputy Aas) and Lyle Tolsma (Tolsma). Walters testified that on December 29, 2002, she and her family were traveling eastbound on Highway 14 in Moody County when they came to the intersection with Highway 13, the same intersection where the collision with Scott occurred. Walters testified that as they passed through the intersection, she heard tires screeching and gravel kicking up. She turned and observed a white Cadillac with dark tinted windows speeding through the intersection and continuing northbound on Highway 13. She testified that she estimated the vehicle’s speed at 70 to 90 miles per hour and that the vehicle did not appear to have stopped at the stop sign. She testified that she believed that the driver applied his brakes at the last minute to avoid hitting her family’s vehicle and that the vehicles came close to colliding. Walters used her cell phone to call 911 to report the incident.

[¶ 10.] Moody County Deputy Aas was notified of Walters’ call and proceeded south on Highway 13 where he encountered a white Cadillac driven by Janklow traveling northbound. Deputy Aas testified that he locked his radar on the vehicle showing a speed of 86 miles per hour. He stopped the vehicle and recognized the driver as Janklow. He testified that he told Janklow about the call received from Walter and that Janklow responded that he was not paying attention to his speed and did not recall the stop sign. Deputy Aas advised Janklow to slow down and let him go.

[¶ 11.] The State also offered the testimony of former South Dakota Highway Patrolman Tolsma. Tolsma testified that on April 27, 2002, he was driving his patrol car through a construction zone on a highway outside Rapid City, South Dakota. He testified that because of the construction, one lane of the highway was closed. Two-way traffic traveled on an uneven temporary roadway consisting of the remaining concrete lane and a temporary asphalt lane. The two lanes of traffic were separated by pylons. The speed limit in the construction zone was 40 miles per hour. Tolsma testified that he observed a vehicle traveling toward him at a high rate of speed. According to his radar, the vehicle was traveling 84 miles per hour. As the vehicle neared, Tolsma testified that the vehicle’s wheels dropped off the edge of the concrete and the driver jerked the vehicle back. Tolsma testified that it appeared the driver was about to lose control of the vehicle. Tolsma testified that he feared that the vehicle would collide with his patrol car so he pulled over as far as he could next to a concrete barrier and almost stopped. As the vehicle passed, he recognized the driver as Janklow. Tolsma did not stop the vehicle.

[¶ 12.] On December 8, 2003, the jury returned guilty verdicts on all four charges. Pursuant to SDCL 23A-27-13, the trial court granted a suspended imposition of sentence on the second degree manslaughter charge.

[¶ 13.] Janklow appeals his convictions and raises the following issues:

1. Whether the trial court erred when it denied Janklow’s motion for judgment of acquittal on the second degree manslaughter charge.
2. Whether the trial court erred when it refused to give Janklow’s requested jury instructions setting forth the defense of unconsciousness and denied Janklow’s motion for a new trial on the basis of the refused jury instruction.
3. Whether the trial court erred when it admitted evidence of uncharged, alleged other acts and denied Jank-low’s motion for new trial on the basis of the improperly admitted, unfairly prejudicial evidence.
4. Whether the trial court erred when it denied Janklow’s motion for mistrial and motion for new trial on the basis of prosecutorial misconduct during the State’s closing arguments.
5. Whether the cumulative effect of the alleged errors of the trial court deprived Janklow of his right to a fair trial.

ANALYSIS AND DECISION

[¶ 14.] 1. Whether the trial court erred in denying Janklow’s motion for judgment of acquittal.

[¶ 15.] Janklow argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to establish beyond a reasonable doubt that he was guilty of second degree manslaughter.

[¶ 16.] Our standard of review is well established:

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. Running Bird, 2002 SD 86, ¶ 19, 649 N.W.2d 609, 613 (quoting State v. Verhoef, 2001 SD 58, ¶22, 627 N.W.2d 437, 442 (internal citations omitted)).

[¶ 17.] Janklow was charged with second degree manslaughter in violation of SDCL 22-16-20. That statute provides:

Any reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

SDCL 22-16-20.

[¶ 18.] The State had the burden of proving that Janklow recklessly killed Randolph Scott. SDCL 22-l-2(l)(d) defines “reckless” as:

(1) If applied to the intent with which an act is done or omitted:
(d) The words “reckless, recklessly” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certa in result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist!.]

[¶ 19.] “[F]or someone’s conduct to be deemed reckless, they must consciously disregard a substantial risk.” State v. Olsen, 462 N.W.2d 474, 476 (S.D. 1990). “Recklessness requires more than ordinary negligent conduct.” Id. “The difference between reckless behavior and negligent behavior is primarily measured by the state of mind of the individual.” Id.

The difference between the terms “recklessly” and “negligently,” as usually defined, is one of kind, rather than degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

State v. Larson, 1998 SD 80, ¶ 14, 582 N.W.2d 15, 18 (quoting Olsen, 462 N.W.2d at 476-77) (other citations omitted) (emphasis in original)).

[¶ 20.] Janklow argues that the State only established that he ran a stop sign. “However, the operation of a motor vehicle in violation of the law is not in and of itself sufficient to constitute reckless conduct, even if a person is killed as a result thereof.” Olsen, 462 N.W.2d at 477. “Criminal responsibility for death resulting from the operation of a motor vehicle in violation of the law will result only if the violation is done in such a manner as to evidence a reckless disregard for the safety of others.” Id. “Mere carelessness or inadvertence or thoughtless omission is insufficient.” Id. (citation omitted).

[¶ 21.] The State argues that the risk that Janklow disregarded was the potential harm arising out of his speeding-through a blind intersection without stopping. “Although it is not always possible for the State to directly establish that a defendant was aware of a risk, it can be done indirectly through the defendant’s conduct.” Olsen, 462 N.W.2d at 477. “Awareness can be established if the defendant acts in a manner that indicates a reckless disregard for the safety of others.” Id. The State maintains that Jank-low’s disregard for the safety of others and his indifference to the consequences of his actions were demonstrated by his conduct of speeding through a stop sign at a blind intersection of two highways without stopping or looking for oncoming traffic.

[¶ 22.] As in Larson, this Court cannot say as a matter of law that Janklow’s conduct did not constitute recklessness. Reasonable minds could differ as to this issue. In reviewing the denial of a motion for judgment of acquittal, this Court accepts “the evidence and the most favorable inferences that the jury might have fairly drawn from the evidence to support the verdict.” State v. Krebs, 504 N.W.2d 580, 590 (S.D.1993) (citing State v. Haase, 446 N.W.2d 62, 65-66 (S.D.1989)). The State presented evidence that Janklow was speeding prior to the collision and passed a vehicle before the intersection at a high rate of speed. Although they disagreed as to the precise speed, both the State’s expert and Janklow’s expert calculated that Janklow was exceeding the 55 mph speed limit for the highway. The intersection where the collision occurred was a blind intersection due to a corn field blocking Janklow’s vision to the east. The State presented evidence that Janklow was familiar with this intersection and was aware of the stop sign. There was a “stop ahead” sign warning of the stop sign at the intersection. Evidence was also presented that Janklow indicated immediately after the accident that he was slowing down for the stop sign, but went through the stop sign because of a white car in his lane. However, eyewitnesses refuted Janklow’s statements regarding a white car. Jank-low’s passenger, Braendlin, testified that he recalled Janklow yelling a warning just before the collision. “[I]t is the function of the jury in resolving factual conflicts, to weigh the credibility of those who testify, and ascertain the truth.” State v. Moran, 2003 SD 14, ¶ 36, 657 N.W.2d 319, 328 (citing State v. Pugh, 2002 SD 16, 119, 640 N.W.2d 79, 82). Our standard of review is not whether we would have reached the same verdict, but whether the “evidence was sufficient to sustain the convictions.” Larson, 1998 SD 80, ¶ 9, 582 N.W.2d at 17. There was sufficient evidence from which the jury could conclude that Janklow was aware of, yet disregarded, the risk of an accident occurring as a result of his conduct. Therefore, the trial court did not err in denying Janklow’s motion for judgment of acquittal.

[¶ 23.] 2. Whether the trial court abused its discretion in refusing Janklow’s requested jury instructions regarding the defense of unconsciousness.

[¶ 24.] Janklow claims that the trial court committed reversible error by refusing to give two requested jury instructions on the defense of unconsciousness. Defendant’s requested Instructions No. 15 and 16 were rejected by the trial court because it found that the principles were already covered by other instructions and that the requested instructions were improper under the circumstances of the case.

[¶ 25.] Our standard of review for refusal to give a 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.

State v. Martin, 2004 SD 82, ¶21, 683 N.W.2d 399, 406 (quoting State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394 (internal citations omitted)). “An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.” First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citing Carpenter v. City of Belle Fourche, 2000 SD 55, 609 N.W.2d 751).

[¶ 26.] Generally, a criminal defendant is entitled to instructions on his theory of the case when evidence exists to support that theory. State v. Charles, 2001 SD 67, ¶ 19, 628 N.W.2d 734, 738 (citations omitted). However, “[t]he law in South Dakota is well settled on the point that courts are not required to instruct as to matters which find no support in the evidence.” State v. Jenner, 451 N.W.2d 710, 720 (S.D.1990) (citations omitted). Further, “[i]t 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.” State v. Downing, 2002 SD 148, ¶ 27, 654 N.W.2d 793, 801.

[¶ 27.] Janklow presented witnesses who testified that, based on the information they were provided, in their opinion Janklow was likely hypoglycemic at the time of the collision. However, being hypoglycemic does not necessarily equate with an individual being “unconscious.” That was a question of fact for the jury to determine.

[¶ 28.] “The defense of unconsciousness is based upon SDCL 22-3-1, which provides, in pertinent part: ‘Any person is capable of committing a crime, except those belonging to the following classes: ... (4) Persons who committed the act charged without being conscious thereof[.]’ ” Jenner, 451 N.W.2d at 721 (alterations in original). In Jenner, this Court acknowledged that other courts have recognized that an unconsciousness defense might be established when the defendant’s conduct is caused by a variety of circumstances, including epilepsy, somnambulism, hypnotism, and some physical trauma, or even emotional trauma. Id. (citing 1 La-Fave and Scott, Substantive Criminal Law, § 4.9 at 543 (1986)). However, this Court specifically did not embrace those causes for unconsciousness defenses. Jenner, 451 N.W.2d at 721.

[¶ 29.] This Court must review the trial court’s refusal of the jury instructions under an abuse of discretion standard. Martin, 2004 SD 82, ¶ 21, 683 N.W.2d at 406 (citations omitted). The trial court exercises broad discretion in instructing the jury. Id. (citations omitted). The trial court found that Janklow’s requested Instruction No. 15 defining “unconsciousness” merely inverted the definition of consciousness. Further, the trial court found that this instruction was confusing because it defined unconsciousness as not being conscious. The jury was instructed on the essential elements of second degree manslaughter in Instruction No. 12. Instruction No. 13 instructed the jury as to the definition of recldess or recklessly requiring a “conscious” disregard of a substantial risk. Additionally, the jury was properly instructed as to the burden of proof. The jury was instructed that it had to conclude beyond a reasonable doubt that Janklow consciously disregarded a substantial risk when he committed the crimes alleged. Janklow was allowed to present extensive medical testimony regarding his condition at the time of the collision and counsel was able to argue to the jury that Janklow was not conscious when the collision occurred because he was suffering from hypoglycemia. Reviewing the jury instructions as a whole, they are an accurate statement of the law and inform the jury.

[¶ 30.] This case is distinguishable from the recent decision in Luke v. Deal, 2005 SD 6, 692 N.W.2d 165. In Luke, the trial court failed to instruct the jury on a well-settled legal principle. Id. at ¶ 21. In this case, the jury was instructed in Instructions No. 12 and 13 that the State had the burden of proving that Janklow consciously disregarded a substantial risk. There was no abuse of discretion in the trial court’s denial of Janklow’s requested instructions.

[¶ 31.] 3. Whether the trial court abused its discretion in admitting other acts evidence.

[¶ 32.] “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).

“Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” Larson, 512 N.W.2d at 736. Thus, the question is not whether, had we been the trial judge, would we have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. Id.; State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

Id. (quoting State v. Anderson, 2000 SD 45, ¶ 93, 608 N.W.2d 644, 670).

This Court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. State v. Devall, 489 N.W.2d 371, 374 (S.D.1992); State v. Olesen, 443 N.W.2d 8, 9 (S.D.1989); State v. Bawdon, 386 N.W.2d 484, 486 (S.D.1986); State v. Percy, 80 S.D. 1, 4, 117 N.W.2d 99, 100 (1962). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Devall, 489 N.W.2d at 374 (quoting State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990)). Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.

Jolley, 2003 SD 5, ¶ 5, 656 N.W.2d at 307 (quoting State v. Orelup, 520 N.W.2d 898, 900-01 (S.D.1994)).

[¶ 33.] SDCL 19-12-5 (FRE 404(b)) governs the admission of prior acts evidence. It provides:

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.

SDCL 19-12-5. In State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 797, this Court clarified that SDCL 19-12-5 is a rule of inclusion, not exclusion. Relevant other acts evidence may be admissible for purposes other than proving the character of the defendant or his propensity to act in conformity therewith. See SDCL 19-12-5.

[¶ 34.] “To determine the admissibility of other acts evidence the court must first determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect.” Jolley, 2003 SD 5, ¶ 8, 656 N.W.2d at 308 (citations omitted).

[¶ 35.] Prior to trial, the State filed notice that it intended to offer other acts evidence. Initially the State sought to introduce Janklow’s driving record which included 12 speeding tickets from 1990 to 1994 and several accident reports. Additionally, the State wanted to introduce several law enforcement reports regarding uncited traffic violations occurring after 1994 while Janklow was governor of the state.

[¶ 36.] The trial court held several hearings on the admissibility of these other acts and ruled that all but two incidents were inadmissible in the State’s case in chief. The trial court found that the Walters and Tolsma “close call” incidents were admissible in the State’s case in chief under SDCL 19-12-5. The trial court made specific findings as to the purpose for which these other acts could be used. The testimony of Walters and Deputy Aas was admissible for the purpose of determining Janklow’s prior knowledge of the intersection in question, Janklow’s state of mind and the absence of inadvertence or mistake. The trial court found that the testimony of Tolsma was admissible for purposes of determining Janklow’s state of mind and the absence of inadvertence or mistake.

[¶ 37.] To prove recklessness as an element of second degree manslaughter, the State had the burden of showing that Janklow consciously disregarded a substantial risk. The Walters’ incident was relevant as evidence of Jank-low’s state of mind and his knowledge of the substantial risk of harm from speeding through that intersection without stopping. Tolsma’s testimony describing Janklow’s driving at an excessive speed in a construction zone and nearly losing control of his vehicle was relevant to establish that Janklow was aware of the risk created by his driving and his disregard for the safety of others. Prior to the testimony, and again in the final instructions, the trial court instructed the jury regarding the limited purposes for the evidence.

[¶ 38.] This case is distinguishable from the recent decision in State v. Lassiter, 2005 SD 8, ¶ 14, 692 N.W.2d 171, 176, as Janklow’s state of mind or intent was clearly at issue in this case. Lassiter dealt with using modus operandi or motive to prove identity. Id. Identity was not in issue in this case. However, Janklow’s mens rea or state of mind was a question for the jury to determine. Thus, the more liberal allowance of prior acts evidence to prove mens rea is applicable in this case. Id. at ¶ 14 n. 2. “Relevancy is demonstrated where evidence is necessary to prove an element of the crime, not simply to demonstrate defendant’s character.” Id. (citing State v. Red Star, 2001 SD 54, ¶ 11, 625 N.W.2d 573, 577). “Once the evidence is found relevant, however, 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).

“The most striking aspect of.... [Rule 404(b)] is its inclusive rather than exclusionary nature: should the evidence prove relevant in any other way it is admissible, subject only to the rarely invoked limitations of Rule 403.” United States v. Zeuli, 725 F.2d 813, 816 (1st Cir.1984). “The party objecting to the admission of evidence has the burden of establishing that the trial concerns expressed in [Rule 403] substantially outweigh probative value.” Larson, supra, § 403.1.

Wright, 1999 SD 50, ¶ 16, 593 N.W.2d at 799 (alterations in original). “Damage to the defendant’s position is no basis for exclusion; the harm must come not from prejudice, but from ‘unfair’ prejudice.” Id. at ¶ 16, 593 N.W.2d at 799 (citing State v. Holland, 346 N.W.2d 302, 309 (S.D.1984)(other citations omitted)).

[¶ 39.] This Court must review the trial court’s decision to admit these prior acts under an abuse of discretion standard. Jolley, 2003 SD 5, ¶ 5, 656 N.W.2d at 307. The issue is not whether this Court would have made the same decision, but whether “any judicial mind, considering the law and the facts, could have reached a similar decision.” Id. (citation omitted). ‘“Abuse of discretion is the most deferential standard of review available with the exception of no review at all.’ ” In re SD Microsoft Antitrust Litigation, 2003 SD 19, ¶ 27, 657 N.W.2d 668, 678 (citations omitted). Under that standard, Janklow has not shown that the trial court abused its discretion in admitting these two prior acts.

[¶40.] Janklow also objects to the trial court allowing the State to ask him on cross-examination whether he always stops at stop signs. However, Jank-low opened the door to these questions by testifying that even though he did not have any memory of stopping at stop signs on the day of the collision, he testified “I’d stop at a stop sign. I just don’t fly through them like that.” See Kremer v. American Family Mut. Ins. Co., 501 N.W.2d 765, 770 (S.D.1993); State v. Burtzlaff, 493 N.W.2d 1, 5-6 (S.D.1992) (holding once defendant “opened the door” to prejudicial other acts, State could cross-examine concerning these acts); State v. Loop, 477 N.W.2d 40, 42 (S.D.1991); State v. Byrum, 399 N.W.2d 334, 337-38 (S.D.1987). The State did not introduce extrinsic evidence of any prior offenses or of Janklow’s driving record. Under the abuse of discretion standard, we cannot say that the trial court erred in allowing this cross-examination.

[¶ 41.] 4. Whether the State committed prosecutorial misconduct warranting a new trial.

[¶42.] “In South Dakota, we approach prosecutorial misconduct using a two-prong analysis.” State v. Smith, 1999 SD 83, ¶ 44, 599 N.W.2d 344, 354. “First, we must determine that the misconduct occurred.” Id. (citations omitted). “If misconduct did occur, we will reverse the conviction only if the misconduct has prejudiced the party as to deny him or her a fair trial.” Id. (citation omitted). The denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Ball, 2004 SD 9, ¶ 16, 675 N.W.2d 192, 197 (citations omitted). Also, a trial court’s ruling on a motion for new trial based on misconduct of counsel will not be disturbed unless there is a clear abuse of discretion. State v. Stetter, 513 N.W.2d 87, 90 (S.D.1994).

[¶ 43.] In closing arguments, Janklow’s counsel criticized the State for its failure to take a reading of Janklow’s glucose after the collision or have the blood sample that was obtained for alcohol analysis also tested for glucose. Counsel for Janklow suggested by his arguments that the State was not interested in a “search for the truth.” His counsel was also critical of the State’s medical expert, Dr. Wilde. Defense counsel noted that the State had consulted with him only two weeks before trial and that he was not aware of Janklow’s Atenolol prescription prior to trial. In his rebuttal, the prosecutor responded to these comments by pointing out that the State did not test Janklow’s blood at the time of the collision because Janklow indicated that his blood sugar levels were fine and he did not appear to be exhibiting signs of hypoglycemia. Further, the prosecutor informed the jury that Dr. Wilde was contacted “immediately when we learned about this goofy hypoglycemia defense.”

[¶ 44.] Janklow’s counsel did not object to the State’s comments during closing arguments. Therefore, the trial court was not given an opportunity to consider the objection or admonish the jury prior to submitting the case to them. Counsel made a motion for mistrial based on the State’s comments regarding the medical defense after the jury had begun deliberating. As an alternative to the motion for mistrial, Janklow requested a limiting instruction to the jury that Janklow had timely disclosed all reports in accordance with the trial court’s discovery orders.

[¶ 45.] The trial court denied the motion for mistrial because it found that the comments were not so prejudicial as to warrant a mistrial and that the jury had already been instructed that the arguments of counsel were not evidence. “Under the settled law of this state, ‘no hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts.’ ” Stetter, 513 N.W.2d at 90 (citations omitted). “Additionally, ‘[t]he trial judge was on the scene, had heard the arguments and had the opportunity to note whether they had any apparent effect on the jury. He apparently [did not] feel that they had and we accede to his judgment lacking any showing on the part of the defense of actual bias or prejudice.’ ” Id. (citations omitted) (alteration in original). Janklow has not shown that the trial court abused its discretion in denying the motion for mistrial and motion for new trial based on these comments.

[¶ 46.] The second occurrence of prosecutorial misconduct alleged by Jank-low occurred at the end of the State’s rebuttal. Janklow argues that the prosecutor made a community conscience argument to the jury. “Community conscience arguments are improper.” Stetter, 513 N.W.2d at 90 (citations omitted). The State told the jury: “The stop sign couldn’t stop him. Nothing could stop him, and it resulted in Randy Scott’s death. I think Ladies and Gentlemen, you know what can stop him.” The State also concluded its rebuttal by stating: “Folks, this is your county, these are your communities, these are your roads, and now this is your case.” However, Janklow’s counsel did not object to these comments at trial or when he made his motion for a mistrial. This objection was first raised following the verdict in Janklow’s motion for new trial. The State argues that Janklow has failed to preserve this issue for appeal.

[¶ 47.] “The prosecutor has an overriding obligation, which is shared with the court, to see that the defendant receives a fair trial.” State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988) (citation omitted). “The prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, and [must] not appeal to the prejudices of the jury.” Id. (internal citations omitted). This Court condemns this type of argument. However, Janklow failed to object to these comments at trial or in his motion for mistrial. The trial court was deprived of an opportunity to admonish the jury or give a curative instruction. “Having failed to give the trial court the opportunity to rule on this issue by objecting at the time, Defendant has waived this argument on appeal.” State v. Boston, 2003 SD 71, ¶ 26, 665 N.W.2d 100, 109 (citing State v. Corey, 2001 SD 53, ¶ 9, 624 N.W.2d 841, 844). See also State v. Handy, 450 N.W.2d 434, 435 (S.D.1990) (holding that defendant did not preserve his challenge to alleged pros-ecutorial misconduct where he did not timely object). “Furthermore, we will not disturb the trial court’s ruling on a motion for a new trial based on misconduct of counsel unless we are convinced there has been a clear abuse of discretion.” State v. Shult, 380 N.W.2d 352, 355 (S.D.1986) (citations omitted). Janklow has not shown a clear abuse of discretion by the trial court.

[¶ 48.] In addition to the two occurrences of prosecutorial misconduct specifically alleged by Janklow on appeal, this Court is disturbed by the prosecutor’s use of the other acts evidence. SDCL 19-12-5 (Rule 404(b)) begins by restating the prohibition in SDCL 19-12-4 (Rule 404(a)) against using evidence of a person’s character or a trait of his character for the purpose of proving that he acted in conformity therewith on a particular occasion. While this Court finds that the trial court did not abuse its discretion in admitting the other acts evidence for a limited purpose, the prosecutor’s attempt in his closing arguments to use the other acts evidence to suggest that Janklow had a propensity to commit this crime was improper.

[¶ 49.] This Court finds that the trial court gave a proper limiting instruction to the jury as to the use of other acts evidence both at the time the testimony was presented and at the close of the evidence. Considering the record in its entirety, Janklow fails to show that the prosecutor’s comments were so prejudicial that they resulted in a denial of due process.

[¶ 50.] 5. Whether the cumulative effect of the alleged errors by the trial court deprived Janklow of a fair trial.

[¶ 51.] Janklow argues that the cumulative effect of the alleged errors in this case deprived him of a fair trial. “[T]he cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial.” State v. Perovich, 2001 SD 96, ¶ 30, 632 N.W.2d 12, 18 (citations omitted). In light of our determinations on the foregoing issues and from our review of the entire record, we believe that Janklow did receive a fair trial.

[¶ 52.] Affirmed.

[¶ 53.] CALDWELL, BASTIAN, RUSCH and VON WALD, Circuit Judges, concur.

[¶ 54.] SEVERSON, Presiding Circuit Judge, and CALDWELL, BASTIAN, RUSCH and VON WALD, Circuit Judges, sitting for GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, disqualified.

      . Janklow was a United States Congressman at the time of the collision. Prior to being elected to the United States House of Representatives, Janklow was the Governor of South Dakota for four terms from 1979 to 1987 and 1995 to 2003.

      . Testing indicated that there was no alcohol present in Janklow’s blood.

      . Requested Instruction No. 15 provided:
      Unconsciousness, as that term is used in these instructions, need not reach the physical dimensions commonly associated with the term such as a coma; it can exist where the defendant physically acts in fact but, for reasons such as epilepsy and other convulsions and reflexes, metabolic disorders, and hypnotic states, is not, at the time of acting, conscious of his actions.
      Requested Instruction No. 16 provided:
      Where a person commits an act without being conscious thereof, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious. This rule of law applies to persons who are not conscious of the acts they perform because they are suffering from hypoglycemia as a result of diabetes.
      Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged offenses for which he is here on trial. If after consideration of all the evidence, you have a reasonable doubt that the defendant was conscious, as that term is used in these instructions, at the time the alleged offenses were committed, he must be found not guilty.

      . Instruction No. 12 provided:
      The elements of the crime of manslaughter in the second degree, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
      1. The defendant caused the death of Randolph E. Scott.
      2. The killing was reckless.
      3.The killing was not excusable or justified.
      Instruction No. 13 provided:
      With respect to the charge of manslaughter in the second degree, the words 'reckless' or 'recklessly' means a conscious and unjustified disregard of a substantial risk that one’s conduct may cause a certain result or may be of a certain nature.

        A person is reckless with respect to circumstances when the person consciously and unjustifiably disregards a substantial risk that such circumstances may exist.

      . Atenolol is beta-blocker used to lower blood pressure, lower heart rate, reduce chest pain, and to reduce the risk of recurrent heart attacks. Janklow presented medical testimony that Atenolol can mask the early symptoms of hypoglycemia.

      . For example, the prosecutor improperly used the prior acts evidence in his closing arguments by stating to the jury:
      And you can consider the December 29th incident concerning the issue of state of mind and inadvertence. You know what happened on December 29th. The stop ahead sign that he passed didn't stop him. The first set of rumble strips didn’t stop him. The second set of rumble strips didn’t stop him. The stop sign didn’t stop him. Nothing could stop him. And he almost collided with the Walters family. Nothing could stop him. Maybe today.

      . "An argument or comment by a prosecuting attorney to the effect that the people of a city, community, or county want or expect a conviction has resulted in numerous reversals, with the courts generally stating that the 'remark' is a fact not in evidence and therefore a departure from the record.” D.E. Evins, Annotation, Prejudicial Effect of Prosecuting Attorney’s Argument to Jury That People of City, County, Or Community Want or Expect a Conviction, 85 ALR2d 1132, § 2(b) (1962-2004). "Other courts in reversing have assigned various reasons, such as (1) the tendency of the remarks to cajole or to coerce a jury to reach a verdict which would meet with public favor, (2) that it took but a trivial matter to prejudice the case of the accused where the alleged criminal act caused excitement in the community where it occurred and where the trial took place, or (3) that the effect of the improper argument was more likely to be regarded as erroneous where the issue of guilt was close and the verdict a harsh one.” Id.