author: SABERS, Justice. ZINTER, Justice

text:
    2004 SD 56
    STATE of South Dakota, Plaintiff and Appellant, v. Nicholas CUMMINGS, Defendant and Appellee.
    No. 22936.
    Supreme Court of South Dakota.
    Argued Feb. 17, 2004.
    Decided April 21, 2004.

      Lawrence E. Long, Attorney General, John P. Guhin, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Rena M. Atchison of Abourezk Law Firm, Rapid City, South Dakota, Attorney for defendant and appellee.
   SABERS, Justice.

[¶ 1;] The State filed a petition for permission to take a discretionary appeal on July 31, 2003. The Court granted the petition on August 28, 2003. The State argues that the magistrate court abused its discretion by suppressing all evidence gathered by a state law enforcement officer after going onto the Pine Ridge Indian Reservation in pursuit of a tribal member. We affirm.

FACTS

[¶2.] Nicholas Cummings, the Defendant, is a member of the Oglala Sioux Tribe and he resides on the Tribe’s Pine Ridge Reservation. The reservation is in Shannon County. Fall River County adjoins Shannon County. On March 4, 2003, Deputy Sheriff Steven McMillin was traveling west when he observed Cummings traveling east on U.S. Highway 18 in Fall River County. Cummings was traveling 71 miles per hour in a 65 mile per hour zone. The deputy turned his vehicle around and began following Cummings. While still in Fall River County, the deputy observed the vehicle cross the yellow line. The deputy activated his lights and Cummings increased his speed to 90 miles per hour. The deputy gave chase. At the time the chase commenced, the vehicles were approximately two miles from the border of Shannon County and the reservation. The deputy pursued Cummings onto the reservation. Once he crossed onto the reservation, Cummings began to slow down and he stopped approximately one mile within the border.

[¶ 3.] The deputy exited his car, weapon drawn. He placed Defendant on his knees, handcuffed him, and brought him to the front of the patrol car. Once the deputy confirmed Cummings’ identification, he removed the handcuffs. The deputy’s recorder in his cruiser captured a conversation between the deputy and Defendant wherein Defendant stated that he had been drinking.

[¶ 4.] The deputy did not have a warrant to enter the reservation, and he failed to request permission from tribal authorities to enter the reservation. He did, however, advise authorities, through his dispatcher, that he was in pursuit and would be crossing onto the reservation. The Defendant was charged in state court with speeding and eluding.

[¶ 5.] After hearing arguments and taking testimony on Defendant’s motion to suppress, the magistrate held that State v. Spotted Horse, 462 N.W.2d 463 (S.D.1990) required suppression of all evidence the officer obtained after he entered the reservation. Everything the officer observed before the Defendant went on the reservation was held admissible. The State appeals raising one issue:

Whether a state officer in fresh pursuit for a traffic violation may pursue a tribal member onto his reservation and gather evidence from the driver when the alleged crimes were committed off the reservation.

We affirm.

STANDARD OF REVIEW

[¶ 6.] We review a trial court’s grant or denial of a motion to suppress under the abuse of discretion standard. State v. Engesser, 2003 SD 47, ¶ 15, 661 N.W.2d 739, 746 (additional citation omitted). The trial court’s findings of fact are reviewed under the clearly erroneous standard of review, but the application of a legal standard to those facts is a question of law, which we review de novo. State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209.

[¶ 7.] Whether a state officer in fresh pursuit for a traffic violation may pursue a tribal member onto his reservation and gather evidence from the driver when the alleged crimes were committed off the reservation.

[¶ 8.] In State v. Spotted Horse, we faced a similar factual scenario. Spotted Horse, an enrolled member of the Standing Rock Sioux Tribe, who resided on the reservation, was observed driving a vehicle that did not display valid license plate stickers. Spotted Horse, 462 N.W.2d at 464. A Mobridge city police officer attempted to stop Spotted Horse while still in Mobridge. He gave chase and after a high speed pursuit, Spotted Horse finally came to a stop in his own driveway at his home on the reservation. After a violent scuffle, Spotted Horse was arrested and taken back to Mobridge. Id. On the way back to Mobridge, the officer smelled alcohol. The officer administered a field sobriety test at the police station, which Spotted Horse failed. Spotted Horse agreed to take a blood test and was ultimately charged with driving under the influence, eluding police, resisting arrest, driving without a license and failure to display current registration. Id. at 465. He was convicted of driving under the influence and failure to display current registration. Id. On appeal, this Court considered whether the police officer was permitted to pursue Spotted Horse onto the reservation and whether the State had jurisdiction to try Spotted Horse.

[¶ 9.] In holding that the State had jurisdiction to try Spotted Horse, we explained South Dakota’s jurisdiction over reservations within the state. For the purpose of clarity, we will briefly discuss that history here. Under Public Law 280, passed by the United States Congress in 1953, states which had constitutions or statutes disclaiming jurisdiction over Indian Country were given statutory power to assume and exercise civil and criminal jurisdiction over reservations. Id. at 466. South Dakota was such a “disclaimer state.” See S.D. Const. Art. XXII (providing in part, “we, the people inhabiting the state of South Dakota, do agree and declare that we forever disclaim all right and title to ... all lands lying within said limits owned or held by any Indian or Indian tribesf.]”) In 1961, the South Dakota Legislature attempted to accept partial jurisdiction over Indian Reservations under Public Law 280. In Spotted Horse, we reversed a previous holding that the State could assert such partial jurisdiction. Relying on Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir.1990), we agreed that the State lacked Public Law 280 jurisdiction because that legislation “did not validly retrocede jurisdiction to the state within the terms of PL 280” and because “South Dakota’s limited excursion into the area of Indian jurisdiction [was] not responsive to the concerns underlying the passage of PL 280.” Spotted Horse, 462 N.W.2d at 467 (citing Rosebud Sioux Tribe, 900 F.2d at 1170-71). Furthermore, because Congress amended Public Law 280 in 1968 to require tribal consent prior to any new assertion of jurisdiction, South Dakota was precluded from enforcing its 1961 legislation. This was so because, “the Tribes, particularly in South Dakota, have relied on the protection offered by the tribal consent amendment since 1968.” Id. Since the State had no jurisdiction on the reservation, we held that our fresh pursuit statute “could not reach onto the reservation” and the arrest of Spotted Horse was illegal. Id.

[¶ 10.] Despite the illegality of Spotted Horse’s arrest, we held that the trial court had jurisdiction to try the defendant. Spotted Horse, 462 N.W.2d at 467. However, we suppressed all of the evidence gathered by the officer while he was on the reservation on the grounds that it was the fruit of an illegal arrest.' Id. at 469 (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Despite the suppression of that evidence, we upheld the conviction for failure to display current registration. We reasoned that this was an offense committed off the reservation, and that proof of the offense was independently obtained through the officer’s observations before the illegal arrest. Id.

[¶ 11.] As previously noted, the trial court relied on our holding in Spotted Horse to suppress all of the evidence obtained by the officer after he followed Cummings onto the reservation. State asserts that the trial court erred in relying on Spotted Horse and disregarding the United States Supreme Court’s holding in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). Our review of Hicks reveals that its holding does not apply in this case and that the language the State relies upon in support of its argument is insufficient to allow such an incursion on tribal sovereignty, especially without specific direction from the United States Congress or a clear holding by a majority of the Supreme Court.

[¶ 12.] By its own terms, the holding of Hicks does not apply in this case. The Supreme Court phrased the issue in that case as:

[W]hether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation.

Hicks, 533 U.S. at 355, 121 S.Ct. at 2308, 150 L.Ed.2d at 405 (emphasis supplied). Here, the question is whether a state officer may pursue a tribal member onto a reservation for a traffic offense without a warrant or tribal permission. The key distinction is that in Hicks, the Tribe was attempting to extend its jurisdiction over state officials by subjecting them to claims in tribal court. Here, the State is attempting to extend its jurisdiction into the boundaries of the Tribe’s Reservation without consent of the Tribe or a tribal-state compact allowing such jurisdiction. In other words, in Hicks, tribal sovereignty was being used as a sword against state officers. Here, tribal sovereignty is being used as a shield to protect the Tribe’s sovereignty from incursions by the State. See Frankie Sue Del Papa, C. Wayne Howie, Federal Bar Association Indian Law Conference: Reaffirming Tribal Sovereignty in an Era of Judicial Activism, Distilling the Essence of Nevada v. Hicks: The State’s Perspective, 65. This is significant because historically, the Federal Government has been highly protective of the Tribes’ right to be free from harm and interference by states. Id.; See also, Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).

[¶ 13.] Furthermore, while it is not necessary that a case be factually identical in order for it to provide binding precedent, we find that Hicks is factually distinguishable. Hicks was a member of the Fallon Paiute-Shoshone Tribes of Nevada. Based on suspicion that Hicks killed a California big horn sheep off the reservation, the state game warden obtained state and tribal court search warrants for Hicks’ home. Hicks claimed that sheep heads in his home were damaged and that the search of his home exceeded the bounds of the warrant and brought suit in tribal court against Tribe and State officers. He claimed trespass, abuse of process and civil rights violations. His claims were brought under 42 U.S.C. § 1983. On appeal, only his suit against state officials in their individual capacity was at issue. The tribal court held that it had jurisdiction over the claims. State officials and the state filed an action in federal district court seeking a declaratory judgment that the tribal court lacked jurisdiction. The district court granted summary judgment in favor of Hicks and the Ninth Circuit Court of Appeals affirmed. The Supreme Court reversed.

[¶ 14.] State quotes expansively from the lead opinion in Hicks, which was written by Justice Scalia. State asserts that by necessity, the Court held that states have inherent jurisdiction on reservations such that state officers are entitled to enter a reservation for enforcement purposes. The State pulls extensively from a portion of Justice Scalia’s writing that indicates that “process of state courts may run into an Indian reservation ... where the subject matter or controversy is otherwise within their cognizance.” Hicks, 533 U.S. at 363, 121 S.Ct. at 2312, 150 L.Ed.2d at 410. Starting from this proposition, the main writing goes on to state:

It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation.
While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction.

Hicks, 533 U.S. at 362-63, 121 S.Ct. at 2312, 150 L.Ed.2d at 410 (internal quotation omitted) (emphasis supplied). As the State points out, the Court went on to note:

Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation.

State contends that these statements by the Court are determinative of the question before this Court. We disagree.

[¶ 15.] First, the Supreme Court was, of course, correct in noting that nothing in the statutory schemes it cited denies the State jurisdiction. However, this Court has already determined that our State never effectively asserted jurisdiction over the reservations in South Dakota. Nothing in current federal enactments has overruled the general proposition that the State has no jurisdiction to act on the reservations in South Dakota. It is difficult to maintain the proposition that the State, after having failed to effectively assert jurisdiction when given the opportunity by Congress, now suddenly gains that jurisdiction through no action of the State or the Tribe.

[¶ 16.] Furthermore, the Court’s statements in Hicks are insufficient to overrule our decision in Spotted Horse. The statements noted above cannot be deemed “holdings” or conclusions necessary to the decision in Hicks. The statements are dicta. In addition, it appears that only two Justices joined that portion of Justice Scalia’s reasoning. Six justices disagreed with the reasoning in the portion of Hicks from which these quotes originate.

[¶ 17.] Finally, the question in Hicks was whether the tribal court had jurisdiction over state officers acting in their individual or official capacity on tribal land. Hicks should be construed to address that question only, and in fact, several federal courts have done so. See e.g., McDonald v. Means, 309 F.3d 530 (9th Cir.2002); MacArthur v. San Juan County, 309 F.3d 1216 (10th Cir.2002); United States v. Archambault, 174 F.Supp.2d 1009 (D.S.D.2001); Fidelity and Guaranty Insurance Co. v. Bradley, 212 F.Supp.2d 163 (W.D.N.C.2002). The question whether a state officer in fresh pursuit for a crime committed off the reservation has jurisdiction to enter the reservation without tribal permission or a warrant was not squarely before the Court. We decline to usurp the power of the United States Congress to make laws with respect to Native American rights and sovereignty and the authority of the Supreme Court to interpret those laws by relying on dicta from a factually and legally distinguishable case.

[¶ 18.] The holding of Spotted Horse controls our decision. State has presented no authority or argument other than Hicks as a basis for overruling Spotted Horse. In the absence of a compact between the Tribe and the State, the state officer was without authority to pursue Cummings onto the reservation and gather evidence without a warrant or tribal consent. Therefore, all evidence gathered after the officer entered the reservation was properly suppressed. As in Spotted Horse, everything the officer observed before entering the reservation, including the Defendant’s alleged speed and attempt to elude the officer, was admissible. Affirmed.

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

[¶ 20.] ZINTER, Justice, concurs specially.

ZINTER, Justice

(concurring specially).

[¶ 21.] The State requests that we overrule State v. Spotted Horse, 462 N.W.2d 463 (S.D.1990) (holding that the State has no jurisdiction to pursue an Indian onto an Indian reservation for criminal offenses committed off the reservation). Spotted Horse has two underpinnings. The State does not request that we reconsider the first Spotted Horse underpinning, which overruled State v. Onihan, 427 N.W.2d 365 (S.D.1988), and held that the State lacked Public Law 280 “jurisdiction over highways running through the reservations.” Spotted Horse, 462 N.W.2d at 467. Instead, the State requests that we reconsider Spotted Horse’s second underpinning, which broadly held that “South Dakota had no jurisdiction on the reservation,” and therefore, hot pursuit could not -reach onto the reservation to pursue and arrest a tribal member. Id. at 468-69. As a result of this second underpinning, Spotted Horse concluded that a state officer’s arrest on the reservation is illegal (i.e. a constitutional violation), and any evidence derived from that arrest is inadmissible. The State asks us to reconsider this second underpinning of Spotted Horse solely because of language in the United States Supreme Court’s recent decision in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). Although I join much of the Court’s decision declining to apply Hicks to Spotted Horse, I write specially to explain my view of this case.

[¶ 22.] First, I join the Court’s analysis of Hicks insofar as it points out the legal and factual distinctions between the civil jurisdiction asserted by the tribal court over non-members in Hicks and the State’s assertion of criminal jurisdiction over a tribal member in the case at bar. Supra ¶¶ 11-14. This fundamental distinction is a significant barrier to Hicks’s application in this case.

[¶ 23.] However, having said that, I must also concede that much of the language of Justice Scalia’s opinion (see supra ¶ 14) suggests that the second underpinning of Spotted Horse was wrongly decided. This conclusion is hardly surprising because, even in the absence of Hicks, the other states that have considered this issue conclude that a state has criminal jurisdiction in this situation. See State ex rel. Old Elk v. District Court, 170 Mont. 208, 552 P.2d 1394, 1396 (1976) (rejecting the contention that an arrest was illegal because it was made pursuant to a state arrest warrant and was executed by a state officer on an Indian person within the boundaries of an Indian reservation); State v. Lupe, 181 Ariz. 211, 889 P.2d 4, 6 (1994), review denied (Feb. 22, 1995) (concluding that a state properly exercised jurisdiction for an offense committed outside the reservation by an Apache tribal member who was pursued into, and arrested within, the reservation). Therefore, I would not categorically dismiss the State’s arguments.

[¶ 24.] I must also part company with the Court’s observation that only two Justices joined Justice Scalia’s “reasoning” in Hicks. See supra ¶ 16. I disagree because three Justices explicitly concurred in Justice Scalia’s and Chief Justice Rehnquist’s “analysis as well as its conclusions,” Hicks, 533 U.S. at 375, 121 S.Ct. 2304 (Souter, J., concurring) (joined by Justice Kennedy and Justice Thomas). Furthermore, Justice Ginsburg concurred in the opinion. Id. at 386, 121 S.Ct. 2304 (stating “I join the Court’s opinion”). Thus, six members of the Court joined Justice Sca-lia’s language, and therefore, the State is correct that much of Hicks’s reasoning foreshadows an eventual reversal of the second underpinning of Spotted Horse.’

[¶25.] Nevertheless, I join the Court because of the fundamental distinction between Hicks’s core issue of tribal jurisdiction over TOoiz-members and Spotted Horse’s core issue of state criminal jurisdiction over tribal members. In light of this difference, it is simply too far a stretch to now conclude that Hicks requires a reversal of the second underpinning of Spotted Horse. Furthermore, it must be recognized that this Court’s own view of this jurisdictional subject is not a model of stability. The Court’s opinion has changed the last two times the jurisdictional issue has been considered. See In re Hankins, 80 S.D. 435, 125 N.W.2d 839 (1964) (no jurisdiction); Onihan, 427 N.W.2d 365 (jurisdiction, impliedly overruled Hankins); and Spotted Horse, 462 N.W.2d 463 (no jurisdiction, overruled On-ihan). Because this Court has equivocated on the jurisdiction question in the past, it remains prudent for this Court to follow Justice O’Connor’s procedural course of following our “best source of ‘coherence in the various manifestations of the general law of [Indian jurisdiction]!.]’ ” Hicks, 533 U.S. at 388, 121 S.Ct. 2304 (quoting Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 1828-29, 149 L.Ed.2d 889 (Souter, J., concurring)). This course is especially appropriate because the Supreme Court specifically declined to review this Court’s last word on the subject in Spotted Horse, 462 N.W.2d 463, cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991).

[¶ 26.] Therefore, I conclude that Hicks is not sufficiently compelling today to require a reversal of course yet a third time. In the absence of a clearer directive from the Supreme Court or a different request for reconsideration, I believe that stability and predictability in the law require our adherence to Spotted Horse.

      . The Court in Spotted Horse noted that the question whether the state court had jurisdiction over the defendant presented a "very close case.” Spotted Horse, 462 N.W.2d at 468. The opinion implies that the Court was inclined to reconsider the rule stated therein under different facts. We need not do so in this case as neither party has questioned whether the state court had jurisdiction to try this case.

      . Frankie Sue Del Papa was Nevada's Attorney General and represented the state in Hides.

      . This is demonstrated by Justice Souter's special writing reaching the same result with different analysis.

      . Justice Souter, with whom Justices Kennedy and Thomas joined, stated, "[w]hile I agree with the Courts analysis as well as its conclusion, I would reach that point by a different route.” He went on to clarify his reasoning, stating, “[b]ut while the Court gives emphasis to measuring tribal authority here in light of the State's interest in executing its own legal process to enforce state law governing off-reservation conduct [] I would go right to Montana’s rule that a tribe's civil jurisdiction generally stops short of nonmember defendants.” Hicks, 533 U.S. at 375, 121 S.Ct. at 2318, 150 L.Ed.2d at 418.
      Justice O'Connor, with whom Justices Stevens and Breyer joined, flatly rejected Justice Scalia’s analysis in this portion of his writing, stating that it was "unmoored from our precedents.” Hicks, 533 U.S. at 387, 121 S.Ct. at 2324, 150 L.Ed.2d at 425.
      Therefore, as indicated, only two justices concurred with that portion of the language and reasoning of the lead opinion upon which the State relies in this case.

      . In addition to the language noted by the majority at ¶ 14, the Supreme Court also noted:
      Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as "sovereign” entities, it was "long ago” that "the Court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries.” "Ordinarily,” it is now clear, "an Indian reservation is considered part of the territory of the State.”

        Hicks, 533 U.S. at 361-62, 121 S.Ct. 2304 (internal citations omitted).
      [Tjribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations — to "the right to make laws and be ruled by them.” The State’s interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government.

        Id. at 364, 121 S.Ct 2304.

      . As in these decisions, the record in this case reflects no extradition agreement for the misdemeanor offenses involved. Therefore, the argument of interference with reservation Government discussed in Benally v. Marcum,

        89 N.M. 463, 553 P.2d 1270 (N.M.1976), is not present here.

      . I also part company with the Court’s broad conclusion that a compact between a tribe and the State is necessary before a state officer may engage in pursuit of a tribal member onto the reservation for a crime committed off the reservation. See supra ¶ 18. I do so because the United States Supreme Court’s jurisprudence clearly permits some state jurisdiction in some situations where there is no compact.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2004 SD 55
    Dawn HEDEL-OSTROWSKI, Plaintiff and Appellant, v. CITY OF SPEARFISH and Keith Hepper, Defendants and Appellees, and Miracle Recreation Equipment Company, Playpower, Inc. and Cameron Holdings Corporation, Defendants.
    No. 22842.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided April 21, 2004.

      Jon J. LaFleur of LaFleur, LaFleur and LaFleur, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Thomas E. Brady of Brady & Pluimer, Spearfish, South Dakota, Attorneys for defendants and appellees.
   MEIERHENRY, Justice.

[¶ 1.] The trial court granted City of Spearfish and Keith Hepper’s motion for summary judgment. The trial court found that Dawn Hedel-OstrowsM’s (Hedel-Os-trowski) negligence claim against the City and the negligence and nuisance claims against Hepper were barred by the statute of limitations. The trial court further dismissed Hedel-Ostrowski’s nuisance claim against the City. We affirm.

FACTS

[¶ 2.] Hedel-Ostrowski accompanied her two children to a Spearfísh city park on September 18, 1999. Hedel-Ostrowski fell when the swing she was using broke. The fall caused nerve damage in her lower leg. She retained counsel and timely submitted a claim against the City of Spearfish for her injuries. The City denied her claim. Subsequently, she was referred to another attorney who failed to pursue her claim in court. She then retained a third attorney who commenced an action on her behalf during September 2002. The complaint named the City, Miracle Recreation Company, Playpower, Inc., and Cameron Holdings Corp. as defendants.

[¶ 3.] Hedel-Ostrowski filed a Motion to Amend Complaint on November 7, 2002 to add Keith Hepper (Hepper), head of Spearfísh Parks and Recreation, as a defendant. The Amended Complaint also added a claim for nuisance against the City in addition to her initial negligence claim. The City filed a Motion for Summary Judgment claiming the negligence action was barred by SDCL 9-24-5 which requires commencement of an action against a municipality within two years of the occurrence. The City also filed a Motion for Summary Judgment claiming that the negligence action against Hepper was barred by the three year statute of limitations in SDCL 15-2-14(3) and that the nuisance action against the City should be dismissed for failure to state a claim. The trial court granted Hedel-Ostrowski’s Motion to amend. The trial court, however, granted summary judgment to the City and Hepper dismissing the negligence and nuisance claims.

ISSUES

1. Whether the -trial court erred in granting summary judgment to Hepper based on a statute of limitations defense.
2. Whether the trial court erred in granting summary judgment to Hepper and the City on the nuisance cause of action.

STANDARD OF REVIEW

[¶ 4.] We review a summary judgment as follows:

“Summary judgment is proper where, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.” Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343 (citing Roden v. General Cas. Co. of Wisconsin, 2003 SD 130, ¶ 5, 671 N.W.2d 622, 624). Statutory construction and interpretation present questions of law and are reviewed de novo. State v. Schroeder, 2004 SD 21, ¶ 5, 674 N.W.2d 827, 829.

DECISION

1. Whether the trial court erred in granting summary judgment to Hepper based on a statute of limitations defense.

[¶ 5.] The trial court found Hedel-Os-trowski’s claims against Hepper were untimely. The parties disagree which statute of limitations applies to the claim against Hepper. Hepper argues that the two-year statute of limitations in SDCL 9-24-5 applies because he was an employee of the City. Hedel-Ostrowski argues that the statute does not apply to individual employees and asserts that the three-year statute of limitations in SDCL 15-2-14 applies. The trial court found that even if the three-year statute of limitations were applicable, Hedel-Ostrowski’s claims were untimely, thus barring suit against Hepper. The trial court determined that the only way that Hedel-Ostrowski’s claim against Hepper could be resurrected was by allowing the amended complaint to relate back to the date of the original complaint pursuant to SDCL 15 — 6—15(e). The trial court, however, determined that the requirements of SDCL 15-6-15(c) were not met because there was no showing of mistake or question of identity of the proper party to sue. The trial court did not err in this analysis.

[¶ 6.] The chronology of events starts with the injury on September 18, 1999. The date the statute of limitations expired against the City under SDCL 9-24-5 was September 18, 2001. Almost a year after the statute had run on September 12, 2002, Hedel-Ostrowski filed suit against the City. The three year statute of limitations under SDCL 15-2-14(3) expired on September 18, 2002. On November 7, 2002, Hedel-Ostrowski moved to amend the complaint to add Hepper as a party and to add the nuisance claim against the City. Hepper was not served with the Summons and Amended Complaint until February 21, 2003.

[¶ 7.] Hedel-Ostrowski asserts that her claims against Hepper should be allowed under SDCL 15-6-15(a) and (c) because they “relate back” to the date of her original pleading dated September 12, 2002, thereby tolling the statute of limitations. In determining if an amendment to a complaint relates back under Rule 15(c), we rely on a three-prong analysis. We recently outlined the requirements:

(1) the claim asserted in the amended complaint ‘arose out of the conduct, transaction, or occurrence set forth ... in the original pleading’;
(2) the new defendant ‘has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits’; and
(3) the new defendant ‘knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’

Sjoland v. Carter, 2003 SD 66, ¶ 12, 664 N.W.2d 48, 52 (citing to SDCL 15-6-15(c)). The parties agree that requirements one and two were met. They disagree on whether the third requirement was met. The trial court found that because Hedel-Ostrowski did not omit Hepper as a party because of “a mistake concerning [his] identity [as a] proper party,” the requirements of SDCL 15 — 6—15(c) were not satisfied.

[¶ 8.] Generally an amended pleading naming a new party in a lawsuit does not relate back under Rule 15(c). In Moore v. Michelin Tire Co. Inc., 1999 SD 152, 603 N.W.2d 513, this Court affirmed the trial court’s finding that “SDCL 15 — 6— 15(c) does not allow for adding new parties to a pending action after the statute of limitation has expired.” Id. at ¶ 22. In Moore, the plaintiffs had named some defendants but used John Doe pleadings for another. It was not until after the statute of limitations had run that they attempted to substitute the name of the party for John Doe. We said, “ ‘for all practical purposes all defendants specifically unnamed are not yet parties to a suit and, if added later, are considered new parties to the litigation. Therefore, amendments to a complaint that add new parties do not relate back.’ ” Id. at ¶ 27 (quoting Thomas v. Process Equipment Corp., 154 Mich.App. 78, 397 N.W.2d 224, 226 (1986)). In the present case, Hedel-Ostrowski did not use John Doe pleadings.

[¶ 9.] Relation back was also denied in McCloud v. Andersen, 485 N.W.2d 799 (S.D.1992). In that case, the plaintiff failed to name the defendant’s insurer before the statute of limitations expired. The plaintiff knew the insurer’s identity prior to the running of the statute of limitations, This Court determined that the plaintiff had “simply ignored or failed to respond in a reasonable fashion to notice that State Farm was a potential defendant.” Id. at 802. We held that “Rule 15(c) should not be applied to assist [plaintiffs] lack of diligence.” Id.

[¶ 10.] Hedel-Ostrowski argues that because Hepper admitted he had notice of the suit before the statute of limitations ran, Rule 15 applies. Whether Hepper had notice is, however, only part of the requirement. The party must have known that “but for a mistake concerning [his] identity, the action would have been brought against him.” Hedel-Ostrowski attempts to use the relate back rule to add a defendant who she simply failed to identify as a potential defendant before the running of the statute of limitations. In McCloud we said, “Rule 15(c) was never intended to assist a plaintiff who ignores or fails to respond in a reasonable fashion to notice of a potential party, nor was it intended to permit a plaintiff to engage in piecemeal litigation.” Id. at 801 (quoting Kilkenny v. Arco Marine, Inc., 800 F.2d 853, 857 (9thCir.l986)).

[¶ 11.] Hedel-Ostrowski claims that adding Hepper as a party should be allowed because he was omitted as a party because of a mistake. She relies on a West Virginia case which allowed relation back because of a mistake of law. Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003). In Brooks, the plaintiffs complaint alleged “that the City, through certain employees acting within the scope of their employment with the City, acted recklessly and in willful disregard of the safety of Mr. Brooks.” Id. at 536. The plaintiff, however, had omitted naming individual employees as defendants. Plaintiffs attorney claimed a mistake of law based on the language of W.Va.Code, 29-12A-1 to -18. He “believed he could not name the individual employees.” Id. In contrast, Hedel-Ostrowski makes no assertion that she believed that she was not lawfully able to name Hepper in her original complaint. Nor does Hedel-Ostrow-ski’s attorney point to any statutory language that led him to believe Hepper could not be named. Hedel-Ostrowski has failed to make a sufficient showing under Rule 15(c) for the claims against Hepper to relate back to the original pleading. The trial court did not err in concluding that the claims against Hepper were barred by the statute of limitations. In light of our ruling, we need not address whether the two or three year statute of limitations applies since both had expired.

2. Whether the trial court erred in granting summary judgment to Hepper and the City on the nuisance cause of action.

[¶ 12.] Next, turning to the nuisance cause of action against the City, we must determine if the trial court erred in ruling that an action for nuisance could not be maintained. Hedel-Ostrowski claims that placing a swing that had a weight limitation in the park, without also conspicuously posting a warning about the weight restriction, created a public nuisance and meets the definition of nuisance in SDCL 21-10-1. The statute provides in relevant part:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others[.]

Id.

[¶ 13.] The trial court found that the facts as alleged do not give rise to a nuisance claim because the City maintained the swing under statutory authority. South Dakota law specifically exempts statutorily authorized actions or maintenance from being considered a nuisance. SDCL 21-10-2. The statute provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Id. The City is authorized to “establish, improve, maintain, and regulate public parks, public squares, parkways, boulevards, swimming pools, camping, and other facilities in connection therewith within or without the municipality, ...” SDCL 9-38-1. It is this authority under which the City established and maintained the swing of which Hedel-Ostrowski complains. The trial court reasoned that because the park was authorized by statute that neither the park nor its equipment could be deemed a nuisance. We agree. The legislature exempts from the definition of nuisance those things done or maintained under statutory authority. We determined in Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, 557 N.W.2d 748 (1996) that the statute applied to a rural electric cooperative. In Kuper, a nuisance action against the cooperative for stray voltage was not allowed. 1996 SD 145, 557 N.W.2d 748. Justice Konen-kamp writing for the majority stated,

In granting an exemption from nuisance actions to statutorily authorized activities, our legislature obviously adopted a public policy that private interests must endure some inconvenience for the general populace to receive the benefits of utilities. Other jurisdictions have also recognized that utilities and businesses of a public nature and having legislative sanction should not be declared nuisances. See cases cited in E.E. Woods, Annotation, Electric Generating Plant or Transformer, 4 A.L.R.3d 902, 910 (1965)(citing cases holding public utility under legislative authority not liable for nuisance, absent negligence in the manner of operation). See, e.g., State of Mo. Ex. Rel. Ashcroft v. Dept. of the Army, 672 F.2d 1297, 1304 (8thCir.l982)(apply-ing Missouri law operation of dam not public nuisance because it was authorized by law); Georgia R.R. Banking Co. v. Maddox, 116 Ga. 64, 42 S.E. 315 (1902)(holding ordinary and necessary concomitants to operating railroad terminal authorized by specific grant of legislative franchise not nuisance). Accord Restatement (Second) of Torts § 821B cmt. f (1977).

The same reasoning applies to a city park. The legislature authorized cities to establish public parks for the benefit of the public. Swings and playground equipment are “facilities in connection therewith.” SDCL 9-38-1. Although some of the general public may perceive the park as a nuisance, the law disallows a cause of action based on nuisance. The trial court did not err in concluding that the cause of action for public nuisance against the City should be dismissed.

[¶ 14.] We affirm.

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

      . The attorney to whom she was referred was temporarily suspended from practicing law approximately two years after agreeing to represent Hedel-Ostrowski.

      . SDCL 9-24-5 provides: "Any action for recovery of damages for personal injury or death caused by the negligence of a municipality must be commenced within two years from the occurrence of the accident causing the injury or death.

      . SDCL 15-2-14(3) provides in part: "Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within three years after the cause of action shall have accrued:
      (3) An action for personal injury.”

      . SDCL 15-6-15(a) provides: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has neither been placed upon the trial calendar, nor an order made setting a date for trial, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
      SDCL 15-6-15(c) provides: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment
      (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and
      (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

      . The original complaint made the following allegations generally including the City's employees:
      It was the duty of the Defendant, City of Spearfish and its employees and servants, to install reasonably safe recreational equipment at the park and to maintain said equipment in a reasonably safe condition so that any person using the same would be protected from injury.
      The Amended Complaint merely inserted the name of Keith Hepper as follows: "It was the duty of the Defendants, Keith Hepper and City of Spearfish and its employees and servant, ...”

      . The relevant part of the West Virginia Code is: (b) Suits instituted pursuant to the provisions of this article shall name as defendant the political subdivision against which liability is sought to be established. In no instance may an employee of political subdivision acting within the scope of his employment be named as defendant. WVaCode 29-12A-13(b) (1986) (emphasis added).


author: PER CURIAM.

text:
    2004 SD 54
    The PEOPLE of the State of South Dakota, in the Interest of D.G., Minor Child, Concerning L.G. and N.B.F., Respondents.
    No. 22887.
    Supreme Court of South Dakota.
    Considered on Briefs April 1, 2004.
    Decided April 21, 2004.

      Lawrence E. Long, Attorney General, David W. Siebrasse, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Kelly Marnette, Aberdeen, South Dakota, Attorney for D.G.
    Christy Griffin Serr, Aberdeen, South Dakota, Attorney for appellant R.L.
   PER CURIAM.

[¶ 1.] Father appeals the termination of his parental rights concerning D.G. We affirm.

FACTS AND PROCEDURE

[¶ 2.] When D.G. was ten days old his mother left him with a relative and went to a bar. Mother was arrested for assault and D.G. was taken into protective custody. R.L., D.G.’s natural father, as determined through subsequent paternity testing, was in the state penitentiary. D.G. was placed with a foster home that contained two of his siblings to which mother had previously terminated her parental rights. Those siblings were adopted through foster placement. D.G. is a special needs child who suffers from reactive airway disease, presumptive reflux and recurrent sinusitis, these conditions culminated in severe asthma.

[¶ 3.] Father was incarcerated for first-degree burglary after he broke into a neighbor’s apartment and assaulted him. Father has an extensive criminal record including seventeen prior offenses. Father indicated to the Department of Social Services (DSS) that he was not an enrolled member of any tribe but that he had applied for membership in the Rosebud Sioux Tribe a number of years earlier but had not heard anything. This information was shared with mother. Thereafter, mother voluntarily terminated her parental rights to D.G. She did so with the hope that D.G. would be adopted by the foster placement family and remain with his siblings. Father subsequently learned that his application to the Rosebud Sioux Tribe had been accepted and he was an enrolled member. Father moved to transfer the proceedings to tribal court and mother objected. The trial court determined that because mother had voluntarily terminated her parental rights she had no standing to challenge the transfer motion.

[¶ 4.] Mother then moved for relief from the order terminating her parental rights under SDCL 15-6-60(b) alleging mistake or misrepresentation in her prior termination proceeding. The trial court granted mother’s motion and the order terminating her parental rights was vacated. Mother objected to a transfer to the tribe and this matter proceeded in circuit court. The trial court terminated father’s parental rights.

ANALYSIS

ISSUE ONE

[¶ 5.] Whether the trial court abused its discretion in vacating mother’s voluntary termination of parental rights.

A. Procedural Error

[¶ 6.] Father attempts to appeal from the trial court’s decision relieving mother from the order entered in her voluntary termination proceeding (circuit court file 01-018). Father appeared at the hearing on that motion but father did not attempt to appeal from that order. Instead, father attempts to appeal from the order granting mother rule 60(b) relief in this separate abuse and neglect proceeding (circuit court file 01-025). Neither the order, the memorandum opinion, nor the findings of fact and conclusions of law entered on that motion appear in this file or are a part of the record made by father. However, they are included in the appendix to the State’s brief. Procedurally, it appears father has failed to perfect his appeal from that order and present it to this Court for review. At any rate, we reach the merits of this argument.

B. Merits of Argument

[¶ 7.] SDCL 15-6-60(b) permits a court, among other things, to relieve a party from a final judgment within a reasonable time for any reason justifying relief. Matter of J.M.J., 368 N.W.2d 602, 607 (S.D.1985) (holding denial of a petition to vacate a termination order was reversible error). “Rule 60(b) is an extraordinary remedy which should be granted only where there has been a showing of exceptional circumstances.” Matter of T.M.B., 416 N.W.2d 260, 263 (S.D.1987). Any decision to grant or deny rule 60(b) relief “rests with the sound discretion of the trial court and will not be disturbed on appeal except for abuse.” Divich v. Divich, 2002 SD 24, ¶ 8, 640 N.W.2d 758, 761.

[¶ 8.] The trial court found that: (1) mother timely petitioned to vacate the order of termination; (2) mother did not want the tribe involved in any case regarding her children; (3) mother would not have terminated her rights if she had known the tribe would seek jurisdiction over D.G.; (4) mother was mistaken in her beliefs concerning the involvement of the tribe; (5) father told mother prior to her voluntary termination, as well as before the birth of D.G., that he was not enrolled in any tribe; (6) father sent a letter to DSS indicating he was not enrolled in a tribe; and, (7) mother relied upon these statements from father. Based on these findings of fact, the trial court determined that mother was entitled to have the termination order vacated on the grounds of mistake and misrepresentation, and these facts constituted exceptional circumstances justifying rule 60(b) relief.

[¶ 9.] Under these circumstances, the trial court’s decision was not an abuse of discretion. Mother had previously objected to transfers of jurisdiction to tribal court when her other children were involved, she was unaware of father’s tribal enrollment based on his representations, and she testified she would have objected to the transfer of jurisdiction if she had been aware that was a possibility.

ISSUE TWO

[¶ 10.] Whether the trial court abused its discretion in qualifying an ICWA expert.

[¶11.] ICWA provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 USC § 1912(f). Father contends that qualified expert testimony, as mandated by ICWA, was lacking in this case.

[¶ 12.] Qualification of experts and admission of their testimony are matters that fall within the trial court’s sound discretion. In re 316 N.W.2d 650, 651 (S.D.1982). A trial court’s rulings in this area will be disturbed on appeal only if its discretion was clearly abused. Id.

[¶ 13.] The trial court qualified DSS caseworker Murtaugh as an ICWA expert. Murtaugh had worked with children and families for eighteen years, worked with DSS for six years, a large majority of the families she had worked with were Native American, she has a Native American family of her own, was trained in cultural issues and had previously been qualified as an ICWA expert. Based on these qualifications, the trial court did not abuse its discretion in determining the witness was a qualified expert under ICWA.

ISSUE THREE

[¶ 14.] Whether the trial court erred in finding the requirements of

ICWA were met before terminating parental rights.

A. Active Efforts

[¶ 15.] ICWA requires the State to show that it made efforts to prevent the breakup of the Indian family. In this regard, ICWA provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 USC § 1912(d).

[¶ 16.] The record demonstrates that DSS engaged in “active efforts” designed to prevent the breakup of this Indian family. Father argues that DSS failed to provide active efforts aimed at rehabilitating the family while he was in custody. Clearly, father’s incarceration was a major limiting factor for DSS in seeking to return D.G. to his care.

[¶ 17.] A parent’s incarceration does not automatically excuse DSS from exercising efforts to return the child. Matter of A.S., 496 N.W.2d 589 (S.D.1993). Yet, it is a matter of fact that a “parent’s incarceration limits DSS in its attempts to rehabilitate the family.” In re A.S., 2000 SD 94, ¶ 23, 614 N.W.2d 383, 387. This acknowledges the reality that in determining a parent’s fitness the fact of incarceration cannot be ignored. Likewise, when assessing what options are available to prepare the parent for the return of a child, incarceration narrows the available options. Father was referred to drug and alcohol classes, parenting courses, independent living and management courses at the penitentiary and received regular contact from the caseworker. Under these circumstances, which included father’s incarceration, DSS’s efforts were active and reasonable. DSS cannot be faulted for father’s criminal choice which limited its ability to return the child.

B. Continued Custody Would Likely Result In Serious Emotional Or Physical Damage To The Child.

[¶ 18.] Child custody proceedings involving the termination of parental rights to an Indian child are subject to specific minimum federal procedures and standards. ICWA provides:

No termination of parental rights may be- ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 USC § 1912(f). Thus, the burden of proof that must be shown is “evidence beyond a reasonable doubt.” Id.

[¶ 19.] The trial court found beyond a reasonable doubt that serious emotional or physical harm to the child would result from continued custody with father. The trial court considered father’s lengthy criminal record and his incarceration in the penitentiary. The trial court also recognized father’s severe alcohol problem that contributed to a number of his criminal activities and found that there is little likelihood he would be able to maintain sobriety in order to care for this child upon his release from the penitentiary. The ICWA expert testified that custody with father would likely result in serious emotional or physical damage to the child. Furthermore, D.G. was a special needs child that needed extra care and monitoring. Based on this, the trial court determined that father was unfit and the child could not wait for him to address his parenting issues and alcoholism. These findings were all made beyond a reasonable doubt and supported by the record. These findings support the termination of parental rights to this Indian child under ICWA and the trial court’s determination that the least restrictive alternative commensurate with the best interests of this child was termination of father’s parental rights.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.

      . A parent's timely pre-termination objection survives to prohibit transfer of jurisdiction to the tribe even when a parent's rights are subsequently terminated. In re K.D., 2001 SD 77, ¶ 9, 630 N.W.2d 492, 494. Had mother been aware of father's tribal enrollment she could have simply entered the objection she was entitled to under ICWA 25 USC § 1911(b) before voluntarily terminating her parental rights.

      . "The use of the plural form, 'expert witnesses,' in □ ICWA does not mean, however, that the testimony of more than one qualified expert is required.” In re Mahaney, 146 Wash.2d 878, 51 P.3d 776, 786 (2002)(citing In re Dependency of Roberts, 46 Wash.App. 748, 732 P.2d 528 (1987); D.A.W. v. State, 699 P.2d 340, 342 (Alaska 1985)).


author: GILBERTSON, Chief Justice.

text:
    2004 SD 53
    STATE of South Dakota, Plaintiff and Appellee, v. Brandon Lee HERRMANN, Defendant and Appellant.
    No. 22892.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided April 21, 2004.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, SD, Attorney for plaintiff and appellee.
    Darren Magee, Office of the Minnehaha Co., Public Defender, Sioux Falls, SD, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] After a jury convicted Brandon Lee Herrmann of kidnapping and raping a seven year old child, Herrmann was sentenced to life imprisonment in the South Dakota State Penitentiary without the possibility of parole. On appeal, Herrmann argues the trial court abused its discretion when it allowed into evidence particular photographs and videotape demonstrating the injuries sustained by the victim. He also challenges the trial court’s decision to admit certain hearsay statements made by the victim. Finally, Herrmann contends his life sentence must be overturned as grossly disproportionate. For the reasons set forth in this opinion, we reject Herr-mann’s claims and affirm his sentence.

FACTS AND PROCEDURE

[¶ 2.] On the morning of December 19, 2001, Mother dropped off her seven year old daughter P.V. at Friend’s residence in Sioux Falls, South Dakota. Mother’s work day began earlier than the start of P.V.’s school day, and she often took her daughter to Friend’s house so P.V. would have a safe place to stay before school. P.V. generally walked to school with her friends from the neighborhood, but on this particular morning the other children had already left for school. A neighborhood teenager offered to walk P.V. to school, but she declined and proceeded to walk to school by herself.

[¶ 3.] At approximately 10:30 a.m., a school official left a message on Friend’s telephone informing him that P.V. had not made it to school. He received the message during his lunch break and immediately contacted Mother. Soon thereafter, law enforcement began searching for P.V. Later that day, Detective David Dunteman found P.V. wandering in the area where she had last been seen. P.V. told Detective Dunteman that she had been picked up on her way to school by a man and a baby. She also said that the man had fed her lunch and given her a bath. Further investigation revealed the presence of both blood and fecal matter in P.V.’s panties. Medical personnel then uncovered evidence that P.V. had been sexually assaulted resulting in extensive trauma to both her vaginal and rectal areas.

[¶ 4.] Eventually, law enforcement determined the sexual assault occurred at the residence of Jason Frye. Although Frye admitted to participating in the crime, Frye insisted Herrmann forced him to take part in the assault. As part of a plea agreement, Frye pleaded guilty to kidnapping P.V. and received a sentence of thirty-five years in the South Dakota State Penitentiary. A grand jury subsequently indicted Herrmann on two counts of Kidnapping and one count of Rape in the First Degree.

[¶ 5.] Frye testified for the State at Herrmann’s trial and related the following version of events. According to Frye, he received several phone calls from Herr-mann on the morning of the crime. In one of the calls, Herrmann told Frye he had a “surprise” for him. Herrmann then took P.V. to Frye’s house and told him he wanted to rape the little girl. Herrmann, Frye, P.V., and Frye’s young son proceeded upstairs to Frye’s bedroom. Frye told his son to go to his room and shut the door. After Herrmann asked Frye to assault the girl, Frye penetrated P.V.’s vagina with his finger but stopped when he noticed she was bleeding. Herrmann proceeded to penetrate the victim’s vagina with his finger and penis. Frye testified P.V. cried in pain throughout the assault and pleaded with Herrmann to stop. Frye also testified Herrmann indicated he had ejaculated into the victim.

[¶ 6.] After this assault, Frye fed his son and P.V. macaroni and cheese. Herr-mann then told Frye he wanted to rape P.V. again, and he directed Frye to take the girl’s clothes and wash them. While Frye washed the clothes, Herrmann raped P.V. anally. Herrmann proceeded to bathe P.V. and use a douche on her. Frye further testified Herrmann told him he had previously molested the girl in his car. This assault resulted in bloodstains in Herrmann’s vehicle. DNA testing concluded the blood stains were from P.V. Frye and Herrmann later dropped off P.V. in the area near her school.

[¶ 7.] In addition to Frye’s testimony concerning the rape, the trial court allowed into evidence certain statements made by P.V. to law enforcement and Colleen Brazil of Child’s Voice. The State also called as a witness Dr. Richard Kaplan, the pediatrician who had examined P.V. shortly after she was found. Dr. Kaplan testified P.V.’s injuries were the result of rape and consistent with trauma caused by an adult male penis. In order to demonstrate the extent and nature of P.V.’s injuries, the trial court allowed into evidence certain photographs, videotape, and medical testimony; The State further presented evidence that the semen found in P.V.’s panties matched a sample of Herrmann’s DNA. At the conclusion of the trial, a jury returned a verdict finding Herrmann guilty on all three counts. Herrmann was sentenced to life imprisonment without the possibility of parole for Kidnapping and received a second life sentence for Rape in the First Degree. He now raises the following issues for our review:

1. Whether the trial court abused its discretion when it allowed the State to present certain photographs and videotape demonstrating the injuries sustained by P.V.
2. Whether the trial court abused its discretion when it admitted certain hearsay statements made by P.V. pursuant to SDCL 19-16-38.
3. Whether Herrmann’s life sentence for kidnapping and rape was grossly disproportionate in violation of the Constitutional prohibition against cruel and unusual punishment.

STANDARD OF REVIEW

[¶ 8.] Herrmann seeks to challenge several evidentiary rulings made by the trial court. On appeal, this Court presumes a trial court’s evidentiary rulings were proper and will affirm absent an abuse of discretion. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15. While the “ultimate decision to admit or not admit evidence is reviewable under the ‘abuse of discretion’ standard, the court’s preliminary determination of whether the hearsay evidence is reliable will not be overturned unless it is clearly erroneous.” State v. Davi, 504 N.W.2d 844, 849 (S.D.1993) (citing Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991)). In addition, we will not reverse unless error is “demonstrated ... [and] shown to be prejudicial error.” State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353.

[¶ 9.] Herrmann also seeks to have his life sentence overturned on the grounds it was grossly disproportionate in violation of the Eighth Amendment. We employ a limited review to challenges based upon the proportionality of a particular sentence. State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17. This Court gives great deference to decisions made by the Legislature and sentencing courts, and sentences within the statutory maximum will rarely be overturned on appeal. State v. Garber, 2004 SD 2, ¶ 13, 674 N.W.2d 320, 323 (quoting State v. Bonner, 1998 SD 30, ¶ 14, 577 N.W.2d 575, 579); Milk, 2000 SD 28, ¶ 10, 607 N.W.2d at 17.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court abused its discretion when it allowed the State to present certain photographs and videotape demonstrating the injuries sustained by P.V.

[¶ 11.] The trial court allowed the State to present certain video and photographic evidence showing the extent of the injuries sustained by P.V. as a result of the sexual assault. The photographs were still images generated from a video tape of a forensic exam conducted by Dr. Kaplan. Herrmann’s counsel unsuccessfully objected to the photographic evidence on the grounds it was unfairly prejudicial to the defendant and would only serve to arouse the passion or prejudice of the jury. Herrmann now renews this argument on appeal. We review the trial court’s decision to admit the photographic evidence under the abuse of discretion standard. State v. Knecht, 1997 SD 53, ¶ 7, 563 N.W.2d 413, 417.

[¶ 12.] To begin, we note when a defendant pleads not guilty, the State has the burden of proving every element of the crime. State v. Mollman, 2003 SD 150, ¶ 17, 674 N.W.2d 22, 28. The State has the right to present its case in any manner it sees fit so long as it stays within the evidentiary rules, and “[w]e have consistently held that the State is not bound by a defendant’s offer to stipulate to facts.” Id., ¶ 18. In this case, because one of the charges against Herrmann was rape, the State had the burden of proving penetration. In order to show penetration, the State offered photographs of P.V.’s injuries obtained from the medical exam conducted shortly after she was found. A trial court may admit photographs into evidence if they “‘accurately portray anything that a witness may describe in words’ or they are ‘helpful in clarifying a verbal description of objects and conditions.’ ” Id., ¶ 16 (quoting State v. Owens, 2002 SD 42, ¶ 89, 643 N.W.2d 735, 756-57). The trial court found the photographs at issue would be helpful to the jury in understanding the medical testimony of Dr. Kaplan. In fact, Dr. Kaplan testified that non-medically trained individuals might not even be able to tell there were injuries depicted in the video without sufficient medical explanation. Given Dr. Kaplan’s testimony and considering the State’s ability to present its evidence in the manner it sees fit, we believe the photographic evidence was relevant in order to show penetration.

[¶ 13.] Under SDCL 19-12-3 (Fed R Evd 403) a trial court may refuse to allow relevant evidence that is unfairly prejudicial to a defendant:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

We have defined unfair prejudice as “evidence that has the capacity to persuade by illegitimate means.” Knecht, 1997 SD 53, ¶ 12, 563 N.W.2d at 419. As noted, the trial court determined the photographs had probative value in assisting Dr. Kaplan’s testimony, and it concluded their admission into evidence would not unfairly prejudice Herrmann. Specifically, the court observed that the photographs only depicted the damaged areas of P.V.’s body and were not pictures of the entire child. Photographs relevant to a material issue do not become inadmissible “merely because they incidentally tend to arouse passion or prejudice.” Mollman, 2003 SD 150, ¶ 16, 674 N.W.2d at 28. Herrmann has failed to show the trial court abused its discretion by allowing the State to appeal to the jury by illegitimate means. As we reiterated in Knecht “[j]ust because the [evidence was] harmful to [Defendant] does not mean [it was] unfairly prejudicial.” 1997 SD 53, ¶ 12, 563 N.W.2d at 419 (quoting State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990) (citation omitted)). In this case, the trial court believed the probative value of the photographic evidence used by the State to show the trauma caused by penetration was not substantially outweighed by any unfair prejudice to Herrmann, and we do not believe it abused its discretion when it allowed the photographs into evidence.

[¶ 14.] 2. Whether the trial court abused its discretion when it admitted certain hearsay statements made by P.Y. pursuant to SDCL 19-16-38.

[¶ 15.] The trial court determined P.V. was unavailable as a witness according to SDCL 19-16-29, and pursuant to SDCL 19-16-38, it allowed the State to offer certain hearsay statements she made to law enforcement officials and Colleen Brazil of Child’s Voice. On appeal, Herrmann challenges the trial court’s ruling that P.V. was unavailable. Herr-mann further believes the State’s use of these hearsay statements violated the Confrontation Clause of the Sixth Amendment. We review the trial court’s ruling under the abuse of discretion standard. Davi, 504 N.W.2d at 849 (citation omitted).

[¶ 16.] SDCL 19-16-29 (Fed. R. Evd. 804(a)) provides in relevant part:

“Unavailability as a witness” includes situations in which the declarant:
(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under § 19-16-81, 19-16-32 or 19-16-33, his attendance or testimony) by process or other reasonable means.

[¶ 17.] At a hearing on Herrmann’s motion to suppress the hearsay statements at issue, Dr. Cynthia Pilkington, a child psychologist who conducted several therapy sessions with P.V., testified that the child would be traumatized if she were forced to testify at trial. Qualified to testify as an expert, Dr. Pilkington diagnosed P.V. as suffering from post-traumatic stress disorder. Dr. Pilkington also related that P.V. would not speak about the assault to anyone except her, and only in her office. In fact, Dr. Pilkington believed if P.V. was forced to see Herrmann face to face it would severely upset the child and set her back a year’s worth of trust. Finally, Dr. Pilkington testified that P.V.’s comments about the incident had remained consistent during their therapy sessions together, and she believed P.V. understood the difference between truth and fabrication.

[¶ 18.] P.V.’s father also testified at the motion hearing. According to the child’s father, P.V. was told at one point she would have to speak about the assault at a hearing. Upon learning this, P.V. jumped into her father’s lap, clenched his arm, and refused to talk. Based on this behavior, P.V.’s father agreed it would be harmful to his daughter to testify, and he decided he would not bring her to the hearing.

[¶ 19.] Based upon the testimony at the motion hearing, the trial court determined P.V. was unavailable to testify under subsections (2) and (5) of SDCL 19-16-29. In addition, the trial court specifically found that her unavailability was not due to any wrongdoing on the part of the State. Considering the facts of this case and after a review of the record, we believe Herrmann has failed to show that the trial court abused its discretion by declaring P.V. to be unavailable to testify. Our conclusion is further bolstered by the fact that Herr-mann has not challenged the reliability of the hearsay statements.

[¶ 20.] Herrmann also challenges the admission of the statements under SDCL 19-16-38 as a violation of his right to confront the witnesses against him. Under the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment, a defendant has the right to confront the State’s witnesses.

[¶ 21.] After his case was submitted to this Court for consideration, the United States Supreme Court rendered its decision in Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177, (2004). In Crawford, the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had allowed admission of out of court testimonial statements possessing a firmly rooted hearsay exception or containing “particularized guarantees of trustworthiness.” 448 U.S. at 66, 100 S.Ct. at 2539. Crawford no longer allows admission of ex parte out of court testimonial statements as they are deemed to be in violation of the Confrontation Clause. — U.S. at -, 124 S.Ct. at 1374. For admissibility, Crawford requires unavailability plus a prior opportunity by the defendant for cross-examination. Id.

[¶ 22.] Although the Supreme Court’s opinion in Crawford rested in large part on the relationship between the Confrontation Clause and “testimonial evidence,” it did not actually define what constitutes a “testimonial” statement. Crawford did indicate, however, that testimonial evidence includes “police interrogations.” Id. Herein, P.V. made statements to Coleen Brazil of Child’s Voice and two police officers.

[¶ 23.] In this case, we need not determine whether any of these statements were testimonial in nature simply because of their contents’ relevancy to the charge of rape and the charge of kidnapping. We conclude that Crawford is distinguishable as to Herrmann’s rape conviction because P.V. never made incriminatory statements to anyone about any sexual acts perpetrated upon her. As far as the kidnapping charge, she did indicate she was picked up and taken away by a person she did not know. However, she did not identify Herrmann as the kidnapper. It is uncontested that she was kidnapped. The contested issue for the jury was whether the State had proved beyond a reasonable doubt that the identity of the kidnapper was Herr-mann. Even if P.V.’s comments could be characterized as impermissible testimonial statements under Crawford, it would be harmless error as there is no identification by P.V. of Herrmann being the kidnapper. Additionally, the overwhelming DNA evidence in this case strongly suggests that error, if any, in admitting P.V.’s statements was harmless. We affirm on this issue.

[¶ 24.] 3. Whether Herrmann’s life sentence for kidnapping and rape was grossly disproportionate in violation of the Constitutional prohibition against cruel and unusual punishment.

[¶ 25.] Herrmann argues that his two life sentences were disproportionate to the thirty-five year sentence given Frye for his participation in the same events for which he was convicted.

[¶ 26.] Initially, we review the sentencing court’s decision under the abuse of discretion standard. State v. Stahl, 2000 SD 154, ¶ 13, 619 N.W.2d 870, 874. In addition, “[i]t is well-settled that we employ very limited principles in our constitutional review” of a particular sentence. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d at 327. In Bonner, this Court outlined the applicable test for reviewing the proportionality of a given sentence:

[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solern factors, conduct an intra-and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense.

1998 SD 30, ¶ 17, 577 N.W.2d at 580(citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)). Given our level of deference to the Legislature and sentencing court, we rarely overturn sentences within the statutory maximum. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d at 327.

[¶ 27.] A jury convicted Herrmann for Kidnapping and Rape in the First Degree. SDCL 22-19-1; SDCL 22-22-1. The Legislature deemed each of these offenses to be Class 1 felonies carrying a maximum penalty of life imprisonment. SDCL 22-6-1. In this case, Herrmann abducted a seven year child who was on her way to elementary school. He violently penetrated the child on several different occasions over the course of the morning and afternoon despite her cries of agony and pleas for him to stop. Herrmann raped P.V. both vaginally and anally resulting in extensive trauma to the child. In fact, Dr. Kaplan, an experienced pediatrician testified that Herrmann’s actions resulted in injuries “as severe as I’ve seen.”

[¶ 28.] In addition to the details of the crime, a sentencing court “should acquire a thorough acquaintance with the character and history of the man before it.” Milk, 2000 SD 28, ¶ 16, 607 N.W.2d at 19. The sentencing court received evidence of Herrmann’s extensive history of sexual contact with minors. A court appointed psychologist also concluded Herr-mann posed a high risk for recidivism and recommended he never be allowed unsupervised contact with minors for the duration of his life. Given the particularly heinous nature of the crimes at issue in this case and considering Herrmann’s extremely limited prospects for rehabilitation, we do not believe the sentencing court abused its discretion in imposing the maximum sentence allowed under South Dakota law for these offenses.

[¶ 29.] Herrmann’s constitutional challenge to the proportionality of his sentence based upon the difference between his life sentences and Frye’s thirty-five year sentence is without merit. Frye fully cooperated with law enforcement to a point where he testified against Herrmann. Frye entered into a plea agreement with the State and pleaded guilty to Kidnapping. A jury convicted Herrmann of both Kidnapping and First Degree Rape. Thus, Frye and Herrmann were sentenced for different criminal acts. Furthermore, as this Court recognized in Garber, “we have never held that the level of culpability for an offense is always the same for each defendant.” 2004 SD 2, ¶ 33, 674 N.W.2d at 328. In this case, the evidence strongly supported the conclusion that Herrmann was the primary perpetrator of the sexual assault of P.V. Without a showing that Herrmann’s and Frye’s “past records, demeanor, degree of criminal involvement, etc., are sufficiently similar as to cause the sentence disparity between them to be unjust” we must defer to the sentencing court’s decision. Id,., ¶ 32.

[¶ 30.] After presiding over trial and reviewing an extensive pre-sentence investigation report, the sentencing court chose to give Herrmann two life sentences in the South Dakota State Penitentiary without the possibility of parole. These sentences were the maximum authorized by the Legislature. Upon a review of the record before this Court, we conclude Herrmann’s total sentence was proportionate to the crimes for which he was convicted. We therefore affirm his sentence.

[¶ 31.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

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

        (a) Testifies at the proceedings; or
      (b) Is unavailable, as a witness.

      However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
      No statement may be admitted under this section unless the proponent of the statement makes known his intention to offer the statement and the particulars of it, in-eluding the name and address of the declar-ant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement, (emphasis added). Herrmann's appeal focuses on the trial court’s determination that P.V. was unavailable as witness. In his brief to this Court, he does not challenge the reliability of the hearsay statements.

      . Article VI, section 7 of the South Dakota Constitution also grants a defendant the right to "meet the witnesses against him face to face.”

      . Applying the factors set forth in State v. Cates, 2001 SD 99, ¶ 11, 632 N.W.2d 28, 34, the trial court found the statements to be reliable. There is no evidentiary or legal basis to overturn this finding.