text:
    2005 ND 19
    Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040252.
    Supreme Court of North Dakota.
    Jan. 19, 2005.
    Susan Schmidt, Bismarck, ND, for petitioner and appellant. Submitted on brief.
    Lloyd C. Suhr, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert L. Johnson appealed from an order denying his application for post-conviction relief. We reverse the order denying post-conviction relief and remand for proceedings consistent with this opinion.

[¶ 2] Johnson pleaded guilty to contact by bodily fluids, a class A misdemeanor. Subsequently Johnson filed an application for post-conviction relief alleging ineffective assistance of counsel, lack of a sufficient factual basis to support his guilty plea, and violation of his constitutional right to be presented with exculpatory evidence held by the State. In response, the State made a motion for summary disposition of Johnson’s request for post-conviction relief. Although the State’s motion provided that Johnson would have 10 days to respond, the trial court granted the State’s motion for summary disposition 7 days later, without having received any response from Johnson.

I.

[¶ 3] On appeal, Johnson claims the trial court erred in granting the State’s motion for summary disposition. Under N.D.R.Ct. 3.2(a), Johnson argues he had 10 days to respond to the State’s motion. This 10-day period had yet to expire, and Johnson had yet to respond, when the district court entered its order.

[¶ 4] In part, N.D.R.Ct. 3.2(a) provides:

Submission of Motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within 5 days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion.

[¶ 5] The State concedes that under N.D.R.Ct. 3.2(a) it was error for the trial court to rule on the motion for summary disposition prior to the 10-day response period expiring. Therefore, the State argues this matter should be remanded to the trial court to allow Johnson to respond to the State’s motion.

[¶ 6] We agree with the parties’ analysis.

[¶ 7] We reverse the order denying post-conviction relief and remand for proceedings consistent with this opinion.

[¶ 8] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice MEIERHENRY, Justice

license: Public Domain

text:
    2004 SD 134
    STATE of South Dakota, Plaintiff and Appellant, v. Kelli Joy RAVEYDTS, Santana Jean Hansen, and Robert James Nicholson, Defendants and Appellees.
    No. 23154.
    Supreme Court of South Dakota.
    Argued on Nov. 17, 2004.
    Decided Dec. 22, 2004.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Lynn A. Moran, Custer, South Dakota, Attorney for appellee Raveydts.
    Chris M. Beesley, Custer, South Dakota, Attorney for appellee Hansen.
    Matthew L. Skinner, Rapid City, South Dakota, Attorney for appellee Nicholson.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we confront the question of what amount of independent police corroboration is sufficient, when combined with information received from anonymous informants, to establish probable cause for the issuance of a search warrant. Two anonymous callers detailed to a' deputy sheriff what they believed to be drug-dealing activity they saw occurring at their apartment building. They provided license plate numbers of persons coming to the apartment to conduct ostensible drug purchases. The deputy checked the license numbers and verified that several of the plates belonged to known drug users. When this information was presented in an affidavit, a judge issued a warrant to search the premises. After the defendants were charged, on a motion to suppress, the circuit court ruled that the warrant was deficient in probable cause and suppressed all the seized evidence. On intermediate appeal, the State contends that the affidavit supporting the warrant had sufficient probable cause, and, even if it did not, the good faith exception permits the admittance of the seized evidence. Defendants argue that the deputy should have done more to independently corroborate the anonymous tips. Because the affidavit in support of the warrant was based on two separate anonymous calls plentiful in detail about apparent drug related activity at the. apartment, and because the deputy corroborated this information by verifying that the license plate numbers of some of the persons allegedly coming to the apartment were known to have been involved in illicit drugs, we reverse, concluding that sufficient probable cause supported the.issuance of the search warrant.

Background

[¶ 2.] On the morning of' July 6, 2008, Deputy Sheriff James Biesheuvel of the Custer County Sheriff s ’ Department received two anonymous telephone calls. The first caller.reported that he believed illegal drug activity was taking place in an apartment located in the upstairs portion of his apartment building. Throughout the first caller’s explanation of what he thought was suspicious, he stated that he believed the occupant’s name was “Kelli,” that the address to the apartment building was 886 Montgomery Street, that Kelli had a lot of traffic coming in and out of the building at all hours of the day and night, and that visitors to the apartment complex would only stay for a short period of time. The first caller also indicated that Kelli would whistle to foot and vehicle traffic from her window to signal the visitors. On one occasion, the caller observed a blonde female visit Kelli’s apartment at 3 o’clock in the morning. The caller later watched the female leave Kelli’s apartment with something in her hand that was small and plastic. Lastly, the first caller provided the officer with a list of vehicle license plate numbers of persons who had visited Kelli’s apartment complex within the last few days. The caller did not give his name to the deputy.

[¶ 3.] The second caller telephoned the sheriffs deputy two hours after the first caller. Like the first caller, this person never gave a name or other identifying information. The second caller, too, claimed to have observed a lot of foot and vehicle traffic coming to and from “Kelli Joy Raveydts’s” apartment throughout the middle part of the week. The caller recognized one of Raveydts’s visitors as a former, and possibly current, drug dealer.' Additionally, a similar list of license plate numbers was provided to the deputy. Finally, because of the caller’s claimed experience with illicit drugs, the second caller told the deputy that a particular smell coming from Raveydts’s apartment had the odor of marijuana.

[¶ 4.] Using public records, Deputy Biesheuvel was able to identify the owners of the license plate numbers supplied by the callers. Three of the identified car owners had a questionable, if not criminal, history. Two of the vehicle owners were involved in prior drug violations. Specifically, the deputy indicated in his affidavit that one of the three known vehicle owners and prior arrestees had been recently identified through drug debriefs and intei--views as being involved in large marijuana sales throughout the Custer area.

[¶ 5.] Based on this information provided in the affidavit, a circuit judge issued a search warrant. The warrant authorized law enforcement officers to search Ra-veydts’s apartment, anyone located in the apartment, the urine of anyone located in the apartment, and any vehicle located at the apartment building during the search belonging to Raveydts or any visitor. The search was conducted at approximately 6:40 p.m., the same day that Deputy Biesh-euvel received the anonymous telephone calls. Upon entering the apartment, officers apprehended Defendant Robert James Nicholson and seized a hypodermic syringe from his pocket. When Defendants Raveydts and Santana Jean Hansen arrived at the apartment in the course of the search, they were also arrested. Numerous items relating to illegal drugs were found and seized in the apartment, including baggies with residue, documents, prescription tablets, a marijuana pipe, snort tubes, a bindle of opium, plastic bongs, and a small tool with residue. Defendants were all charged with drug related offenses based on the result of the search and interviews conducted after their arrests.

[¶ 6.] Defendants moved to suppress the evidence obtained, alleging that the warrant and supporting affidavit were deficient for lack of probable cause. The circuit court granted defendants’ motion to suppress, finding that the search warrant was issued on insufficient information. On intermediate appeal, the State asserts (1) that the trial court erred in suppressing the evidence because the affidavit provided sufficient probable cause to justify the warrant, and (2) if probable cause was lacking, the seized evidence should be admitted under the good faith exception.

Analysis and Decision

[¶ 7.] We review the sufficiency of a search warrant “by looking at the totality of the circumstances to decide if there was at least a ‘substantial basis’ for the issuing judge’s finding of probable cause.” State v. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (citations omitted)). In Gates, a pivotal decision in search and seizure law, the United States Supreme Court abandoned formal application of the two-pronged test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d. 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Now the inquiry is whether the information provided to the judge was sufficient for a “common sense” decision that there was a “fair probability” the evidence would be found on the person or at the place to be searched. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. “Furthermore, we review the issuing judge’s probable cause decision to grant a search warrant independently of the conclusion reached by the suppression hearing court.” State v. Boll, 2002 SD 114, ¶ 44, 651 N.W.2d 710, 721 (Konenkamp, J., concurring) (referencing Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d at 416).

[¶ 8.] “Reviewing courts are not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing judge’s legal basis for granting the warrant is examined with ‘great deference.’ ” Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d at 416 (following Gates, 462 U.S. at 236, 103 S.Ct. at 2331). “ ‘A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’ ” Id. (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984)). Under this Court’s implementation of the Gates standard, we view an anonymous caller’s “ ‘reliability, veracity, and basis of knowledge’ ” as relevant considerations in finding probable cause; these considerations, however, are “ ‘not independent, essential elements.’ ” Id. (repeating United States v. Reivich, 793 F.2d 957, 959 (8thCir.1986)); see Gates, 462 U.S. at 230, 103 S.Ct. at 2328.

[¶ 9.] Under the Fourth Amendment to the United States Constitution and, similarly, in Article VI, Section 11, of the South Dakota Constitution, “[t]he right of the people to be secure'in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit....” SD Const art VI, § 11. “ ‘The determination of whether an affidavit in support of a search warrant shows’ probable cause for issuance of the warrant must be based upon an examination of the four corners of the affidavit.’ ” Jackson, 2000 SD 113, ¶ 11, 616 N.W.2d at 416 (quoting State v. Lodermeier, 481 N.W.2d 614, 622 (S.D.1992)’ (following State v. Iverson, 364 N.W.2d 518, 522 (S.D.1985))). “Reasonable inferences may be drawn from the information in the affidavit.” Id. (citing Lodermeier, 481 N.W.2d at 622; State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978)).

[¶ 10.] Deputy Biesheuvel’s affidavit in support of the State’s request for a search warrant of Raveydts’s apartment provides in pertinent part:

On 7-6-03 at approximately 0800 hours I was contacted by anonymous male subject at the Custer County Sheriffs Office. The male subject refused to be identified but stated that he had information on suspicious activity that he believed to be related to narcotics trafficking. He stated that he currently lives at the Winchester Apartment building located at 866 Montgomery Street. He stated that a young lady he only knows as Kelli that lives in the upstairs portion of the building has a lot of traffic in and out of her apartment. He stated the traffic will be passing by on the street and Kelli will whistle at them from her front window. The vehicles will stop [and the passengers will] go to her apartment for a short period of time ranging from 5-15 minutes and then will leave. He stated that Kelli is up at all times of the day and he even observed her at 0300 hours looking out her window for traffic. As he left that early morning a car [that] drove past was whistled at by Kelli and stopped. The driver he described as being a young female with blonde hair. The driver of the car walked upstairs [and] went into the apartment and left a few minutes later with something small and plastic clutched in her hand. He stated that there is usually two females at the window and does not know the, second female and only knows Kelli. He provided me with a list of license plates that he has observed in the last few days at the apartment. He stated that there has [sic] been more vehicles at the house but he could not always read the license plate. One of the license plates belonged to [John Doe]. [Doe] has been arrested for possession of marijuana in the past and has recently been identified through drug debriefs and interviews to be dealing a large amount of marijuana in the Custer area. I am also aware that [Doe] was identified in an interview conducted by the South Dakota Department of Criminal Investigation of receiving large amounts of marijuana from a person arrested by DCI earlier this year.

The affidavit then mentions two other individuals that Deputy Biesheuvel’s license plate search revealed. Each of the individuals had, in some form, a history of illegal drug activity. Following the deputy’s description of the first call, he next described the conversation he had with the second anonymous caller.

At approximately 1000 hours I received an anonymous call from a subject. The subject refused to identify himself/herself but stated he/she had information in regards to Kelli Joy Raveydts. The caller stated that there has been a lot of foot and vehicle traffic at the apartment owned by Kelli since Wednesday of this week. He/She stated that he/she is a former [n]arcotics user and recognized the pattern of drug deals taking place based upon his/her previous experiences. He/She stated that on Wednesday of this week he/she observed a male subject he/she knows to be [John Doe] arrive at Kelli’s apartment. He/She knows [Doe] to have sold rñiarijuana in the past and believes him to still be doing so. The caller stated that [Doe] stayed for a few minutes before leaving. Immediately after he left vehicles started showing up at Kelli’s apartment and staying for less than twenty minutes for each visit. He/She stated that he/she counted five vehicles that came and went from the apartment immediately after [Doe’s] visit. He/She, also stated that he/she .recognizes the smell of burning or burnt marijuana from his/her previous experiences and that he/she occasionally smells the odor coming from Kelli’s apartment.

The affidavit offered no other corroborating evidence to support the deputy’s conclusion that illegal activity was taking place.

[¶ 11.] Two elements are often crucial in deciding whether an anonymous informant’s tip provides a “substantial basis” for the issuing court’s finding of probable cause. First, an “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the informant’s] tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S.Ct. at 2330. Here, the informants provided considerable detail about the activities they personally observed at Ra-veydts’s apartment.

[¶ 12.] Second, the extent. to which the tip is corroborated by the officer’s own investigation is important. Id. at 244, 103 S.Ct. at 2335. We acknowledge that “corroboration of the information by independent investigation is an important factor in the calculus of probable cause.” United States v. LaMorie, 100 F.3d 547, 553 (8thCir.1996) (citations omitted). Cf. United States v. Vargas, 931 F.2d 112, 114-16 (1stCir.1991) (upholding a search of defendant’s home due to corroborative evidence gained after the police received an anonymous tip). Deputy Biesheuvel checked the motor vehicle licensing records to identify the individuals who allegedly visited Raveydts’s apartment. But he performed no personal “surveillance [or] observation of unusual civilian or vehicular traffic at the address” to substantiate either caller’s account of presumed illegal conduct. United States v. Gibson, 928 F.2d 250, 253 (8thCir.1991) (citing Gates, 462 U.S. at 238, 103 S.Ct. at 2332). “An anonymous tip ... is insufficient in itself to support a finding of probable cause.” United States v. Wells, 223 F.3d 835, 839 (8thCir.2000); see Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 1377, 146 L.Ed.2d 254 (2000). The question is whether the checking of the license plate numbers was sufficient independent corroboration.

[¶ 13.] The case of People v. Titus, 880 P.2d 148, 151-52 (Colo.1994), provides a helpful counterpoint to our case. Similarly, the issue in Titus was law enforcement corroboration of an anonymous informant’s list of motor vehicle license plates of alleged drug buyers who frequented a suspect’s home. There, the police corroborated that the license plate numbers of the vehicles on the list provided by the anonymous informant matched the description of the vehicles that the informant gave. See id. But this list was innocuous: “There [was] nothing in the affidavit to suggest ... that any of these vehicles belonged to known drug offenders.... ” Id. at 151. Thus, the court explained: “The matching of vehicle license plate numbers with vehicle descriptions was not the kind of ‘police corroboration’ that would serve to establish probable cause in this case. Absent any additional corroboration — for example, that the owners of the vehicles were involved in illegal activity — it was insufficient to support a finding - of probable cause.” Id. at 152 (emphasis added).

[¶ 14.] Here, on the other hand, Deputy Biesheuvel verified that some of the license plate numbers belonged to persons known to have been involved in -illegal drug activity. This tended to corroborate the information the two anonymous informants had given. ■ Furthermore, the informants’ explicit and detailed description of alleged wrongdoing, all of which they observed firsthand, was entitled “to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S.Ct. at 2330. And-the two separaté anonymous tipsters also tended to corroborate each other. Under the facts of this case, allowing deference to the issuing judge’s probable cause determination, we think the corroboration here was sufficient. The issuing judge had a “substantial basis” for determining that the deputy’s affidavit established probable cause to search the apartment. We need not reach the question on the good faith exception to,the exclusionary rule.

[¶ 15.] Reversed.

■ [¶ 16.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶ 17.] SABERS, Justice, concurs specially.

[¶ 18.] MEIERHENRY, Justice, dissents.

SABERS, Justice

(concurring specially).

[¶ 19.] Although this is a very close question, I join the majority opinion for four reasons:

.•I. Although the two anonymous callers may have been the same person or may have collaborated with each other, there was some corroboration to support probable cause that drug crimes were being committed.
2. The law strongly favors an officer obtaining a search warrant, where the officer must go before a neutral Judge or Magistrate with an affidavit in support of a search warrant to. establish “probable cause that a crime is being committed” before intrusion into a home. State v. Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d 719, 723 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)) (“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ”).
3. Although Justice Meierhenry’s writing raises valid concerns, including the statement that:
If the “corroboration” that occurred in the case is all we require, an unaccountable, anonymous caller can cause a completely innocent person’s home to be raided by simply making up a provocative and entirely untruthful story.

That statement may be true, but there is no showing that is the case here. In fact, far more constitutional violations are likely to come from intrusions into homes and vehicles by officers without search warrants, under claimed exceptions to the search warrant requirement, including (1) claimed consent, (2) exigent circumstances including hot pursuit, (3) searches incident to arrest, and (4) protective sweeps. State v. Heumiller, 317 N.W.2d 126 (S.D.1982) (despite claims .by law enforcement, no exigent circumstances existed to justify warrantless search of house); State v. Bennett, 295 N.W.2d 5 (S.D.1980) (exigent circumstances justifying warrantless search were not present). See the following divided opinions: State v. Schwartz, 2004 SD 123, 689 N.W.2d 430 (whether warrantless search of defendants’ trash was an unreasonable search and seizure); State v. Hess, 2004 SD 60, 680 N.W.2d 314 (whether exigent circumstances justified officers’ warrantless entry into apartment); State v. Castleberry, 2004 SD 95, 686 N.W.2d 384 (whether defendant’s consent to search vehicle was free and voluntary); State v. Lamont, 2001 SD 92, 631 N.W.2d 603 (whether exigent circumstances justified entering defendant’s motel room, to search and arrest him); State v. Brassfield, 2000 SD 110, 615 N.W.2d 628 (whether warrantless search of defendant’s vehicle incident to his arrest was unconstitutional).

4. Finally, the coincidence of the corroboration of the license plates, along with the statements within the two anonymous telephone calls indicates that it was more probable than not that drug crimes were being committed, resulting in probable cause to support this search warrant.

MEIERHENRY, Justice

(dissenting).

[¶ 20.] I respectfully dissent. The majority cites extensively to Gates. While Gates did abandon the formal application of the two-prong test for anonymous tips in favor of a totality of the circumstances analysis, it still requires “a conscientious assessment of the basis for crediting [anonymous] tips.” Id. at 238, 103 S.Ct. 2317. The Court in Gates goes on to state, “Our decisions applying the totality of circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Id. at 241, 103 S.Ct. 2317. In fact, Gates discusses the value and significance of corroborating facts separately and at great length. Id. at 241-46, 103 S.Ct. 2317.

[¶ 21.] The American Heritage Dictionary defines “corroborate” as follows: “To support or confirm by new evidence; attest the truth or accuracy of.” THE AMERICAN HERITAGE DICTIONARY 327 (2d ed 1985). In this case, the officer did nothing to verify that the anonymous caller’s information was truthful or accurate. He did not even go to the scene of the alleged criminal activity. It is true that there were two anonymous calls made in this case, but the State acknowledges the calls may have been made by the same person, since they were, after all, anonymous. And while the officer did check the license plate numbers given to him, he never verified that the vehicles had actually been at the apartment. If the “corroboration” that occurred in this case is all we require, an unaccountable, anonymous caller can cause a completely innocent person’s home to be raided by simply making up a provocative and entirely untruthful story.

[¶ 22.] The majority cites to Titus. In Titus the Colorado Supreme Court found that no probable cause existed where the license plate numbers given by an anonymous tipster were innocuous, and the majority distinguishes it on this basis. 880 P.2d at 151-52. However, the majority fails to mention that in Titus, the police also sent a police informant to the suspect’s home to attempt to purchase drugs, at which time the suspect made a number of suspicious statements, the police performed surveillance of the home,- and the officer determined the employment status of the suspect (self-employed). All of this was included in the officer’s affidavit. Id. at 149-50. Despite all of this comparatively substantial corroborating evidence, the Colorado court did not believe that probable cause was established.

[¶ 23.] Contrary to the statements in the majority opinion, there was no genuine corroboration of the anonymous tips in this case, i.e. attestation of the truth or accuracy of the tips. Neither was there firsthand observation of the wrongdoing by the tipster or anyone else. Here, the tipster(s) did not claim to have witnessed drug possession, consumption, sales, or purchases.

[¶ 24.] By adopting the majority opinion, we have nearly absolved an officer of the duty to investigate crimes personally, and now allow an officer to rely almost exclusively on unknown, unnamed, and unaccountable tipsters. The majority cites little, if any, authority where probable cause was found under similar circumstances. Instead, the majority distinguishes a few cases where probable cause was not found. In the case before us, all the officer did was check the license plate numbers given to him by the anonymous tipster(s). I disagree with the majority that this is enough. Simply put, this decision stretches the limits and reduces the requirements for probable cause to a point that puts even the most innocent and law abiding citizens at risk of a humiliating and demeaning intrusion of their homes.

[¶ 25.] Under the totality of the circumstances there was not a substantial basis for the issuing judge’s' finding of probable cause. I would affirm the trial court.


author: SABERS, Justice.

text:
    2004 SD 133
    Wayne M. PRUCHNIAK, Beth M. Pruchniak, Terry Vaughan, Laura Vaughan, Nomi Grenko, Richard Grenko, Joseph D. Giesler, Mike Sexton, Rolli Sexton, Denise LeDuc, Wade LeDuc, Kelli Fernando, N. Emile Fernando, Miles McClung, and Mike Birkel, Appellants, v. The SCHOOL BOARD OF ELK POINT-JEFFERSON SCHOOL DISTRICT # 61-7, Appellee.
    No. 23150.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Dec. 22, 2004.

      A.J. Swanson, Sioux Falls, South Dakota, Attorney for appellants.
    Dennis C. McFarland, Sioux Falls, South Dakota, Attorney for appellee.
   SABERS, Justice.

[¶ 1.] A group of homeowners (the “Pruehniak group”) residing in a rural housing development in Union County, South Dakota, petitioned for a minor boundary change to transfer their property from the Elk Point-Jefferson (“EP-J”) School District to the Dakota Valley (“DV”) School District. The EP-J School Board combined the Pruehniak group’s petition with a similar petition filed by homeowners (the “Anthony group”) from the same development, and denied the request. The circuit court denied the Pruehniak group’s appeal holding that it was proper for the EP-J School Board to combine the petitions. The Pruehniak group appeals and we affirm.

Facts

[¶2.] The Pruehniak group represents nine families residing in the Wynstone Development, which is located in the southern portion of the EP-J School District and borders the northern portion of the DV School District. The entrance of the Wyn-stone Development is approximately 1.5 to 2 miles west, southwest of DV schools, and 16 miles south of EP-J’s school at Elk Point. Approximately 7 school age children live in the area covered by the petition, but none of them presently attend EP-J schools. The parents of these families work in communities located to the south of the Wynstone Development, including North Sioux City, Dakota Dunes, Sioux City (Iowa), and Sergeant Bluff (Iowa). No member of the Pruehniak group reports any social, business or fraternal connections with the community of Elk Point or the EP-J School District.

[¶ 3.] The Pruehniak group was part of an earlier minor boundary change petition to transfer their property from the EP-J School District to the DV School District. This petition was earlier denied by both the EP-J School Board and the circuit court; the primary reason being that the valuation of the property covered by the petition exceeded two percent of EP-J’s total valuation. Subsequently, the petitioners divided their efforts and filed separate petitions, each covering smaller portions of land than contained in the original joint petition. The property within the Pruehniak group petition is assessed at $2,270,583, which is less than one percent of EP-J’s total assessed valuation. All of the owners of land within the Pruehniak group signed the petition, and DVs school board approved the petition.

[¶ 4.] However, the EP-J School Board re-combined the Pruehniak group’s petition with that of the Anthony group, who had filed their own separate petition one week earlier. The EP-J School Board entered a resolution denying the combined petition; the key finding being that the assessed value of the properties contained in the combined petition exceeded two percent of EP-J’s total assessed valuation, and therefore did not meet the statutory requirements.

[IT5.] The Pruehniak group, appealed the school board’s decision to the circuit court. The circuit court denied the appeal by finding that it was proper for the EP-J School Board to combine the two petitions.

Standard of Review

[¶ 6.] In a minor boundary dispute between homeowners and a school district, our scope of review is limited to determining the legality of the school board’s decision. Smith v. Canton Sch. Dist No. 41-1, 1999 SD 111, ¶ 7, 599 N.W.2d 637, 639 (citing Colman-Egan Sch. Dist. No. 50-5 v. Jones, 520 N.W.2d 890, 892 (S.D.1994)). We are not bound by a presumption that the circuit court decided correctly. Id. (citing Strain v. Rapid City Sch. Bd., 447 N.W.2d 332, 338 (S.D.1989)). School boards enjoy broad discretion in decisionmaking and need only make sure their decisions are not arbitrary, capricious or unreasonable. Id. ¶ 9 (citing Kellogg v. Hoven Sch. Dist. No. 53-2, 479 N.W.2d 147, 149 (S.D.1991)). A decision is arbitrary and capricious when it is not governed “by fixed rules, procedures, or law.” Black’s Law Dictionary 100 (7th ed.1999).

[¶ 7.] Whether the school board was correct in combining the two minor boundary change petitions and denying them because théy affected more than two percent of the school district’s total assessed valuation.

[¶ 8.] The EP-J School Board contends, and the .circuit court agreed, that since both petitions were once combined in an earlier petition, the two separate petitions must be considered' as one. In my view, the plain meaning of the applicable statutes, SDCL 13-6-84.1 and 13-6-85, neither permits nor compels the combining of the petitions. SDCL 13-6-84.1 mandates that all school district boundary change petitions must contain land that is coterminous with the common boundary of the two school districts, and that children must reside in the petitioned area. SDCL 13-6-85 requires that any proposed minor boundary change must not affect more than two percent of the school district’s total assessed valuation, and that all the owners of land contained in the petition must sign the petition. These statutory requirements do not preclude the Pruchn-iak group’s petition, in and of itself.

[¶ 9.] However, the majority of the members of this Court are satisfied that it was proper to join the two petitions on the basis that:

The Pruchniak group’s current separate petition was filed to circumvent the Legislature’s jurisdictional, two percent valuation limitation for “minor” school boundary changes. This is clearly demonstrated by the trial court’s findings that (1) the Pruchniak’s and Anthony’s prior joint petition “align[ed] a single street” and “for all intents and purposes [it is] one piece of property” in a new residential development; and, (2) the EP-J School Board has previously rejected the prior joint petition affecting the identical property descriptions because it exceeded the two percent valuation limitation. Because these findings have not been alleged to be clearly erroneous, because a different boundary change procedure is required when the two percent valuation limitation is exceeded, and because this new separate petition was filed to circumvent the two percent valuation restriction, we affirm.

[¶ 10.] We affirm the circuit court’s denial of the appeal because the Pruchniak and Anthony groups’ petitions, when combined, exceeded the two percent valuation limit.

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

       Under state law, minor boundary change petitions cannot exceed "more than two percent of the assessed valuation.” SDCL 13-6-85.


author: ZINTER, Justice.- SABERS, Justice

text:
    2004 SD 132
    STATE of South Dakota, Plaintiff and Appellee, v. James PASEK, Defendant and Appellant.
    No. 23096.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2004.
    Decided Dec. 22, 2004.

      Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Joseph M. Kosel, Lawrence County Public Defender’s Office, Deadwood, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.-

[¶ 1.] James Pasek escaped from'jail in Bozeman, Montana, stole a vehicle, and drove to Gillette, Wyoming where he met his friend, Christina Starr. While with Starr, he told her that he was going to rob another bank. Despite being counseled against the idea, Pasek robbed the First Western Bank in Spearfish, South Dakota. Pasek then stole another vehicle in Spearfish, and was ultimately arrested in Bloom-ington, Indiana. Pasek was convicted of robbery in the first degree, grand theft (cash from the' bank), grand theft (the second vehicle), and grand theft by possession of stolen property (the first vehicle). Pasek appeals contesting (1) the sufficiency of the evidence, (2) the denial of his motion for mistrial, (3) the finding that he had committed three prior felonies, and (4) his sentence of life imprisonment without parole.

Facts and Procedural History

[¶ 2.] On June 29, 2003, Pasek escaped from jail in Bozeman, Montana, where he was being held on charges relating to a prior bank robbery. After escaping, he stole a Lincoln Mark VIII in Bozeman and drove to South Dakota. On June 30, 2003, Pasek walked into the First Western Bank in Spearfish and handed the teller, Tara Hicks, a note. The note stated: “This is a robbery, hand over all the hundreds, fifties, twenties, and tens, and do it quietly.” The bottom of the note said “no funny s— t.”

[¶ 3.] Being “in fear of [her] life,” Hicks gave Pasek the money. She put the money in a silver cosmetic bag that Pasek had placed on her teller station. Hicks did not notice a weapon on Pasek. However, she was not sure if he had a weapon. Hicks stated that she responded calmly because she had been trained to react in that manner, regardless of the circumstances of the robbery. The money given Pasek included “bait money”; i.e., marked money that activated an alarm at the police station. Pasek left the bank in a stolen GMC Envoy, and Hicks dialed 911.

[¶ 4.] After the robbery, Pasek drove to Gillette and picked úp his friend, Christina Starr, whose stepmother lived in Bloomington, Indiana. Pasek was later taken into custody in Bloomington in possession of the GMC Envoy and a. “wad of money,” including one bill that matched the serial number of the bait money taken in the Spearfish robbery.

[¶ 5.] A jury found Pasek guilty of the offenses, and his motions for judgment of acquittal and judgment notwithstanding the verdict were denied. A Part II information alleged that Pasek was a habitual criminal. A court trial was held on that information, ,and the court found that Pa-sek had three prior felonies, including one crime of violence. Consequently, Pasek was sentenced as an habitual offender to life in prison without parole on the first degree robbery conviction. He was sentenced to fifteen years on each of the other three counts. All four sentences were to run concurrently. Pasek now appeals.

Analysis and Decision

Sufficiency of the Evidence

[¶ 6.] Pasek asserts that there was insufficient evidence, as a matter of law, to find that he committed first degree robbery. He contends that the evidence was insufficient because he did not use any force or brandish a .weapon. Therefore, Pasek argues that the requisite element of force or fear was absent.

[¶ 7.] “The standard of review for denial of a motion for judgment of acquittal is whether the ‘evidence was sufficient to sustain the convictions.’ ” State v. Verhoef 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (citing State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17). The standard of review for determining the sufficiency of the evidence is well settled.

“In determining the sufficiency of the evidence on appeal' in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Laplante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310 (internal citations omitted). Thus, “[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.” State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted).

[¶ 8.] “Robbery is the intentional taking of personal property ... in the possession of another from his person or immediate presence, and against his will, accomplished by means of. force or fear....” SDCL 22-30-1. Robbery in the first degree must be “accomplished by the use of force or by putting the person robbed in fear of spme immediate injury to his person.... ” SDCL 22-30-6. That fear, necessary for robbery in the first degree, may be either:

(1) The fear of an injury, immediate or future, to the person or property of the person robbed, or of any relative of his or member of his family; or
(2) The fear of an immediate injury to the person or property of anyone in the company of the person robbed at the time of the robbery.

SDCL 22-30-3.

[¶ 9.] Pasek argues that because Hicks had been trained to react calmly during a robbery, she was not sufficiently fearful to satisfy the “fear” requirement of these statutes. Pasek emphasizes that he had no weapon during the robbery and he made no overt threat of a present or future injury. He finally asserts that “the note given to the teller was as benign as any unauthorized request for money could be composed.” These arguments fail on both the facts and the law applicable to this case.

[¶ 10.] Factually, there was sufficient evidence from which the jury could have reasonably inferred that Hicks was in fear during this robbery. Hicks testified that because of the “language of the note,” she took it very seriously, she was emotionally upset, and she was “very fearful. [She] was in fear of [her] life as well as [her] other co-workers and any customers that were in the bank.” Hicks also testified that just because Pasek did not show her a weapon that did not mean he did not háve a weapon. She stated “maybe if I didn’t cooperate, maybe he did have [a weapon], I didn’t know.” She explained, “I was trained to give him the money because you never know if they have a weapon, .just because they didn’t show you. I didn’t want to take the chance.” Finally, Hicks’ supervisor testified that she was visibly shaken immediately after the robbery, and a detective with the Spearfish Police Department confirmed that Hicks was shaking and very, upset approximately ten minutes after the robbery. Clearly, this evidence was sufficient to establish the requisite element of fear in this robbery.

[¶ 11.] We also note that legally, the fear necessary for robbery is not measured by the subjective feelings of the victim. “As in the analogous crime of assault, the word ‘fear’ in connection with robbery does not so much mean ‘fright’ as it means ‘apprehension’; one too brave to be frightened may yet be apprehensive of bodily harm.” LaFave, Wayne R., Substantive Criminal Law § 20.3(d) (2d ed.2003). Thus, as the Eighth Circuit Court of Appeals has explained, an objective standard is used for the analogous “intimidation” element in the federal law on robbery. United States v. Yockel, 320 F.3d 818, 824 (8thCir.2003). The Eighth Circuit noted: '“[t]he intimidation element is satisfied if an ordinary person in the position of a victim teller or bank employee reasonably could have inferred a threat of bodily harm from the robber’s actions.” United States v. Gipson, 383 F.3d 689, 699 (8thCir.2004) (citing Yockel, 320 F.3d at 824). See also, United States v. Brown, 412 F.2d 381 (8thCir.1969) (jury could justifiably find that the teller was intimidated when the defendant passed teller a note saying it was a hold up and he would kill her if she said a word, even though the teller dropped the note to attract attention, pulled out marked money from her cash drawer, told defendant “to show me your gun, you little snot, or get out of here,” and defendant then left empty handed); United States v. Bingham, 628 F.2d 548, 548 (9thCir.1980) (“Taking by intimidation is the willful taking in such a way as would place an ordinary person in fear of bodily harm”).

[¶ 12.] State courts also agree that if the circumstances of a robbery would “ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear .... ” Magnotti v. State, 842 So.2d 963, 965 (Fla.Dist.Ct.App.2003). “[T]he controlling factor is not necessarily the victim’s subjective state of mind, but whether a jury could conclude that a reasonable person, under like circumstances, would have felt sufficiently threatened to accede to the robber’s demands.” Id. Or, as stated in Hawthorne v. State:

‘The fear must be of such a nature as in reason and common experience is likely to induce a person to part with his property against his will, and to put him, as it were, under the temporary suspension of the power of exercising his will through the influence of the terror impressed.’

501 P.2d 155, 157 n. 5 (Alaska 1972) (quoting Steward v. People, 224 Ill. 434, 79 N.E. 636, 639 (1906)). We agree with these authorities and further note that if this reasonable person standard is met, it does not matter whether the defendant actually intended the intimidation. Yockel, 320 F.3d at 824.

[¶ 13.]Considering the law and facts of this case, we conclude that a jury could have reasonably found that Hicks was placed in fear of immediate injury within the meaning of SDCL 22-30-3 and 22-30-6.

Motion for Mistrial

[¶ 14.]Prior to the robbery and while in the first stolen vehicle, Pasek told Starr that he had escaped from jail after a different bank robbery in Montana, that he had stolen the car, and that he planned to rob another bank. Parts of this admission were disclosed to the jury as res gestae evidence. Pasek contends that a mistrial should have been granted because it was “impermissible [other acts] evidence.”

[¶ 15.] The standard of review for a denial of a mistrial is well-settled.

Trial courts have considerable discretion not only in granting or denying a mistrial!,] but also in determining the prejudicial effect of a witness’ statements. Only when this discretion is clearly abused will this court overturn the trial court’s decision. To justify the granting of a mistrial, an actual showing of prejudice must exist. Prejudicial error for purposes of determining whether error constitutes grounds for mistrial is error ‘which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.’

State v. Phair, 2004 SD 88, ¶ 13, 684 N.W.2d 660, 665 (quoting State v. Anderson, 1996 SD 46, ¶ 21, 546 N.W.2d 395, 401; quoting State v. Myers, 464 N.W.2d 608, 609-610 (S.D.1990)).

[¶ 16.] The testimony at issue was elicited in Starr’s direct examination. The following exchange occurred between the prosecutor and Starr:

Prosecutor: Did you say anything to him about his plan to rob a bank?
Starr: Um, I didn’t want him to, because that’s how he got busted before, but ...
Prosecutor: What did you say to him about his plan to rob a bank, if anything?
Starr: I told him he shouldn’t rob a bank because you’re going to get locked up again.
Prosecutor: What did he say when you told him not to rob a bank?
Starr: He said that that was his only way to get money and he had to.

[¶ 17.] Pasek contends that the State elicited this evidence, which disclosed a prior robbery, in violation of a trial court ruling. Pasek specifically asserts that the trial court, in a prior hearing, had ruled that it would allow Starr’s testimony “as to the theft of the vehicle and possible escape from Montana, but no mention of a prior bank robbery was ever allowed.” However, this alleged ruling of the trial judge is not found in the record. See infra, ¶ 19.

[¶ 18.] Furthermore, the trial court’s reasoning for denying a mistrial was that the court “could not tell from the questions themselves that they were designed to elicit ... responses regarding any prior criminal activity [the prior robbery].” We agree. We also note that Starr was immediately admonished from making “any references to any other prior offenses ... whether that be references to escape attempts or robberies,” with the exception of the stolen Lincoln Mark VIII. Considering the nonresponsive nature of Starr’s answers and the court’s curative admonishment, we see no abuse of discretion in denying the motion for mistrial.

[¶ 19.] Although Pasek also insists that the prosecutor intentionally violated a pretrial order in asking these questions, we note that these questions were permitted by the court’s pretrial ruling. At the pretrial motion hearing regarding other acts evidence, Judge Johnson stated that he had read the transcript of Starr’s grand jury testimony, and he allowed its admission stating “in my opinion, [Starr’s grand jury testimony is] clearly res gestae evidence and not other acts evidence, so I would expect to allow the testimony by the witness consistent with her grand jury testimony. ... I would not consider her testimony to be other acts evidence.” The grand jury testimony was essentially identical to the disputed evidence restated above. Starr stated to the grand jury:

[Pasek] told us that he planned on robbing another bank.... We [friend Tara and Starr] both told him that that was stupid, and that was what always got him thrown in jail, and that it was stupid, but he didn’t listen....

Because the trial court had previously ruled that it would allow Starr to testify consistent with her grand jury testimony, we reject Pasek’s suggestion that the State’s questions reflected a “pervasive disrespect ... for the rules of evidence” and the trial court’s prior rulings on other acts evidence.

[¶ 20.] With respect to the merits of the trial court’s res gestae ruling, we have previously permitted “admission of other crimes where such evidence is ‘so blended or connected’ with the one[s] on trial ... that proof of one incident involves the other[s]; or explains the circumstances; or tends logically to prove any element of the crime charged.” State v. Hoadley, 2002 SD 109, ¶ 37, 651 N.W.2d 249, 258 (quoting State v. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81; State v. Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d 126, 130). In State v. Jones, we elaborated:

The res gestae embraces matters and statements immediately antecedent to, and having a causal connection with, the main transaction. The res gestae as applied to a crime, includes the complete criminal transaction from its beginning or starting point in the act of accused until the end is reached. Continuing acts or a series of events, transpiring before the commission of the crime, and which lead up to and are necessary or helpful to an understanding of the main event, and tend to explain the conduct and purposes of the parties are admissible as part of the res gestae.

2002 SD 153, ¶ 15, 654 N.W.2d 817, 820 (quoting State v. Burtts, 81 S.D. 150, 155, 132 N.W.2d 209, 211-212 (1964)) (emphasis added).

[¶ 21.] Pasek’s complete criminal transaction began with his escape and vehicle theft on June 29 and ended with the First Western bank robbery and second vehicle theft on June 30. The statements at issue occurred while Starr was in the first stolen vehicle having a conversation with Pasek about his plans to rob the bank. Because Starr’s testimony “embraced ... statements immediately antecedent to ... the main transaction,” and because Pasek’s submissions lead up to, and were helpful to an understanding of the bank robbery and car thefts, they were properly admitted -as res gestae. See id.

[¶ 22.] We finally note that the questions asked by the prosecutor were limited to Pasek’s “plan” to rob the bank. Because the questions only appear to attempt to elicit Pasek’s plan to rob the bank, they were not attempts to elicit inadmissible other acts evidence of character. Evidence of Pasek’s plan to rob the bank was admissible as an exception to the general rule against use of character evidence. See SDCL 19-12-5 (Rule 404(b)).

[¶ 23.] The trial court did not abuse its discretion in denying Pasek’s motion for a mistrial.

Habitual Offender-Three Prior Felonies

[¶ 24.] The trial court determined that Pasek had committed three prior felonies, one involving a crime of violence. He was, therefore, sentenced to life imprisonment as a habitual offender under SDCL 22-7-8. Pasek contends the trial court erred in applying the habitual offender sentencing enhancement because he claims that he only had two prior convictions within the meaning of SDCL 22-7-9.

[¶ 25.] Pursuant to SDCL 22-7-8, if a defendant has three or more previous felony convictions, including at least one crime of violence, “the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony.” However, prior convictions are limited to one prior conviction arising from each “transaction.” SDCL 22-7-9.

[¶ 26.] It is uncontested that Pasek was convicted of one state felony arising from a shoplifting transaction on April 16, 1997. It is also uncontested that Pasek was convicted in federal court on August 28, 2002 of seven federal felony counts:

(1) Conspiracy to commit bank robbery;
(2) Bank robbery and aiding and abetting bank robbery;
(3) Use of a firearm during and in relation to a crime of violence and aiding and abetting use of a firearm during and in relation to a crime of violence;
(4) Use of a firearm during and in relation to a crime of violence and aiding and abetting use of a firearm during and in relation to a crime of violence;
(5) Theft of firearms and aiding and abetting theft of firearms;
(6) Conspiracy to use firearms during and in relation to a crime of violence;
(7) Felon in possession of a firearm.

The dispute here concerns the number of transactions (and thus convictions) involved in these seven felonies.

[¶ 27.] The trial court determined that the seven felonies arose from four separate transactions, one involving a crime of violence. The trial court itemized the transactions as follows:

(1) The crime of bank robbery [in Cas-per, Wyoming on March 9, 2002, which] was a distinct felony and it was a crime of violence;
(2) The offense of felony possession of a firearm is a distinct offense and a felony;
(3) The theft of the firearms from the pawn shop [in Gillette, Wyoming on March 8, 2002] is a distinct felony from the use of firearms or possession of the firearms and a distinct felony from the bank robbery;
(4) The conspiracy charge.

[¶ 28.] Pasek contends that the trial court improperly found four separate transactions because he believes that all of the felonies were related to one conspiracy/bank robbery transaction. Pasek relies upon State v. Flittie, 318 N.W.2d 346 (S.D.1982) (Flittie I) and State v. Flittie, 425 N.W.2d 1 (S.D.1988) (Flittie II). However, only Flittie II involved the habitual offender statute at issue here. In Flittie II, this Court concluded that because the “conviction on the conspiracy charge was based on the same post-murder conduct as the accessory after the fact charge,” the convictions could not be considered separate convictions for the purposes of SDCL 22-7-9. Id. at 2. Based upon this precedent, both federal conspiracy charges would be based on the same conduct as the federal robbery, and therefore, the conspiracy charges could not have arisen from a separate transaction. We must next consider whether the five remaining felonies, occurring over a span of two days, were also part of that same conduct.

[¶ 29.] In interpreting a prior version of a related statute on sentence enhancement, SDCL § 22-6-6.1 (eonseeutive/con-current sentences), we noted that “[t]here is no definition of separate transactions in the criminal statutes .... ” State v. Sieler, 1996 SD 114, ¶ 16, 554 N.W.2d 477, 481. We analyzed that case by looking at single or multiple acts. Id. ¶ 18. We observed that, “when the ‘transaction’ consists of two or more criminal acts, the fact that the two are ‘successive’ does not require the conclusion that they have merged.” Id. (citation omitted) (concluding that burglary, attempted first-degree murder, rape, kidnapping, and aggravated assault of a single victim on a single night in the same residence were separate transactions). We found separate transactions in Sieler because “Sieler’s crimes were each distinct separate acts that were completed before the next act began ....” Id. ¶ 19. Thus, under Flittie II and Sieler we must examine the five remaining non-conspiracy convictions to determine whether they were based upon the same conduct or whether they were distinct, separate acts, each completed before the next act began.

[¶ 30.] Pasek’s federal robbery conviction occurred one day after the theft of firearms conviction. These two offenses also occurred more than 150 miles apart. Therefore, Pasek’s theft of firearms on March 8, 2002 in Gillette involved different conduct and was a distinct, separate act that was completed before the bank robbery in Casper on March 9, 2002. Thus, those two convictions arose from separate transactions. However, possession of a firearm involved the same conduct and was not a distinct, separate act from the theft of the'firearm or the robbery. .Therefore, the federal possession of a firearm charges did not arise out of a separate transaction.

[¶ 31.] This leaves Pasek with eight state and federal convictions arising from'three separate transactions, namely: the felony shoplifting in 1997, the March 8, 2002 theft of firearms in Gillette, and the March 9, 2002 bank robbery in Casper. Consequently, the trial court did not err in finding three prior felony convictions.

Cruel and Unusual Punishment

[¶ 32.] Pasek argues that “the facts of this case do not equate to the most severe example of [f]irst[-d]egree [r]ob-bery,” and he should not have been given the most severe sentence that could be imposed. He also contends that his sentence of life imprisonment was grossly disproportionate and constituted cruel and unusual punishment under the Eighth Amendment.

[¶ 33.] This Court employs limited constitutional review of sentences. State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (citing State v. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d 14, 18). Among the limiting principles are “substantial deference to the legislature’s broad authority to determine the types and limits of punishment” and the notion that “the Eighth Amendment does not mandate adoption of any one penological theory.” Milk, 2000 SD 28, ¶ 14, 607 N.W.2d at 18 (citing State v. Hinger, 1999 SD 91, ¶ 16, 600 N.W.2d 542, 547 (citations omitted)). We also rarely disturb sentences within the statutory maximum. State v. Stahl, 2000 SD 154, ¶ 5, 619 N.W.2d 870, 871-872 (citations omitted).

[¶ 34.] Our precise standard of review is well settled:

[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 Solem 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.

State v. Herrmann, 2004 SD 53, ¶ 26, 679 N.W.2d 503, 511 (quoting State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580; citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)).

[¶ 35.] Pasek’s life sentence fell within the range the Legislature authorized in SDCL 22-30-7, 22-7-8 and 22-6-1(3). Pa-sek, however, contends that the sentencing court did not sufficiently consider rehabilitation prospects under Bonner, 1998 SD 30, 577 N.W.2d 575. We disagree because the record reflects that Judge Johnson did consider rehabilitation. Judge Johnson noted that Pasek was an “unusual criminal defendant” and that he was the type of person that would rather be on the run and have the excitement of committing a crime than leading a normal life. Judge Johnson specifically stated that “[Pasek’s] plan for rehabilitation will be to figure out how to get out of prison,” further stating that Pasek had to have the excitement of committing crimes, trying to avoid capture, and then when captured, trying to escape and seeing how long before he was captured again. Thus, although it was not favorable to Pasek, Judge Johnson' clearly considered rehabilitative prospects in formulating a sentence.

[¶ 36.] In addition, we can see why the trial court believed that Pasek was a poor prospect for rehabilitation. In just this series of events, Pasek escaped while in custody for a bank robbery, stole two cars, announced his intent to rob another bank, and then carried through with his plan. Moreover, when asked if there was anything he wished to say at sentencing, he told the court that he felt “some sort” of regret for what he did. He further conceded “I get off on the rush-on the rush of doing things, obviously, from my criminal record.”

[¶ 37.] That criminal record reflects that in 1997, at the age of 18, he was convicted of felony shoplifting. In 1998, he violated probation and his sentence was reimposed. In 2002, he was convicted of seven offenses involving conspiracy to commit bank, robbery, bank robbery, use of a firearm in a crime of violence, theft of firearms, conspiracy to use firearms in a crime of violence, and felony possession of firearms. Then, while in jail in Wyoming as a federal prisoner, he escaped and fled to Bozeman, Montana, where he robbed another bank. Pasek then escaped from jail in Bozeman, stole a vehicle there, and committed the South Dakota offenses. Finally, there was evidence that he considered an even more dangerous escape attempt before his South Dakota trial. In planning that escape, he stated to the jail staff “I’ve eseape[d] twice before, you don’t think I can escape from here. I am now more desperate and I’ll take hostages next time.” Considering all of this conduct with utmost deference to the Legislature and the sentencing court, we see no gross dis-proportionality.

[¶ 38.] Although our analysis generally ends here, we also address Pa-sek’s contention that the trial court did not have adequate information to sentence him because it failed to order a presentence investigation. A presentence investigation may be ordered in the discretion of the court. However, in this case Pasek specifically waived his right to a presentence investigation. Therefore, the court was not required to order one. SDCL 23A-27-5. Nevertheless, Pasek argues that the failure to order the presentence investigation was an abuse of discretion.

[¶ 39.] Pasek concedes that he waived his presentence investigation, but he argues that “the trial court is empowered to order such an investigation and this is an example of a case where such an order should have been implemented” because it would have disclosed other evidence. We reject this argument. Obviously, trial courts can only make sentencing decisions — including orders for presentence investigations — based upon the evidence that is presented through trial advocacy. Pa-sek, however, foreclosed that possibility by waiving his right to present the “other” information either through testimony, offer of proof, or through a presentence investigation. Under those circumstances, this Court will not surmise that such mitigating information even exists. Therefore, we find no abuse of discretion in failing to order a presentence investigation when such an investigation is waived by a defendant and the defendant has failed to identify the mitigating evidence that might have been disclosed.

[¶ 40.] Affirmed.

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

[¶ 42.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.

SABERS, Justice

(concurring in part, dissenting in part).

[¶ 43.] I dissent on the punishment approved in Issue 4 because:

A LIFE SENTENCE WITHOUT THE POSSIBILITY OF PAROLE ELIMINATES FOREVER ANY OPPORTUNITY FOR HOPE, SELF-IMPROVEMENT, AND REHABILITATION.

[¶ 44.] A life sentence should only be imposed when a trial court “can determine from the facts of the principal offense and the previous convictions that rehabilitation is so unlikely as to be removed from consideration in sentencing; that the interests of society demand that the convict be kept off the streets for the rest of his life ... and that the life sentence not constitute excessive retribution.” State v. Pulfrey, 1996 SD 54, ¶ 18, 548 N.W.2d 34, 38 (internal citations omitted). Here, the principal offense and the previous convictions do not show “that rehabilitation is so unlikely as to be removed from consideration in sentencing.” Id.

[¶ 45.] Life imprisonment for Pasek’s crimes is the maximum and most severe sentence that could be imposed. SDCL 22-30-7; SDCL 22-6-1; SDCL 22-7-8. These crimes and prior convictions are not of such magnitude to justify a lifetime of incarceration without the possibility of parole. These crimes were committed in a nonviolent manner. There was no physical injury or overt threat to injure anyone. Pasek neither damaged nor destroyed any property in the commission of his crimes. Although the bank teller who gave him the marked bills was in fear, he did not otherwise harm her. While Pasek’s crimes and prior convictions are very serious, they do not rise to the level that “the interests of society demand that the convict be kept off the streets for the rest of his life.” Pulfrey, 1996 SD 54, ¶ 18, 548 N.W.2d at 38 (emphasis added).

[¶ 46’.] Even though Pasek’s principal offense and previous convictions permit a life sentence, we should heed the argument of his attorney:

Certainly, rehabilitation is possible with this young man [ ]. He is an immature 25 years of age. Nevertheless, he has the intellectual capacity to overcome a history of largely untreated attention deficit disorder, to mature past his penchant for adrenalin, and become a safe and productive member of society after a significant period of incarceration. The nightmare of the sentence to this young man is that he will have no incentive to improve himself or modify his behavior.

Appellant’s Brief, p. 24.

[¶ 47.] As Justice Amundson stated in 2000:

[t]he only medicine to help in changing or rehabilitating any individual seems to be the ‘hope’ that he or she can again obtain their freedom by amending their attitude and ways. There should generally be a light at the end of the tunnel for any human no matter how bad he appears or how bad his past conduct reflects he is •.... It seems as though the result of this sentence is to cast, this individual into the human waste dump and let him languish there until he finally totally decomposes and has gasped his last breath.

Ganrude v. Weber, 2000 SD 96, ¶ 29, 614 N.W.2d 807, 813 (Amundson, J. dissenting).

[¶ 48.] “The sentencing court should also consider rehabilitation prospects.” State v. Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d 575, 580. Although neither Pasek nor his attorney provided any real evidence of any redeeming social value, we should assume that this young man has some potential to develop some redeeming social value given the opportunity. The rehabilitation programs available to the defendant while incarcerated, along with the natural maturation process, should provide him the opportunity to learn and become a better person.

[¶ 49.] We should reverse and remand this life sentence without the possibility of parole to the trial court for a meaningful less than life sentence. Yes, the word “meaningful ” modifies the word “less.” A meaningful less than life sentence should be comparable to one’s life expectancy. For example, this man is 25 years old with a life expectancy in the mid 80’s. Therefore, anything exceeding 50-60 years denies him a real reason to work towards learning, self-improvement, and rehabilitation. Where required, we must insure that sentencing allows for some hope.

[¶ 50.] While Pasek should be punished for the serious crimes he has committed, it is beneath our society to just close the book on him under these circumstances. Therefore, I would reverse and remand on Issue 4 to direct the trial court to impose a meaningful less than life sentence in accordance with this dissent.

[¶ 51.] MEIERHENRY, Justice, joins this special writing.

      . SDCL 22-30-1 provides:
      Robbery is the intentional taking of personal property, regardless of value, in the possession of another from his person or immediate presence, and against his will, accomplished by means of force or fear, unless the property is taken pursuant to process or otherwise pursuant to law.

      . SDCL 22-30-6 provides:
      Robbery when accomplished by the use of force or by putting the person robbed in fear of some immediate injury to his person is robbery in the first degree. When accomplished in any other manner, it is robbery in the second degree.

      . 18 U.S.C.A. § 2113(a) (2002) on bank robbery and incidental crimes provides in relevant part:
      Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ... shall be fined under this title....

      . Pasek also argues that Hicks' alleged fear was due to "mere temperamental timidity.'’ However, this argument ignores the objective standard. Having the forethought and training to calmly give Pasek the bait money and call 911 does not negate an objective finding of fear. Furthermore, there is no evidence that Hicks was a timid person or that she was “easily” placed in fear.

      . Pasek also contends that there "was confusion” regarding the proper instruction to be given to the jury on "fear,” and he requests "clarification” from this Court on the specific fear necessary to satisfy both degrees of robbery under SDCL 22-30-3 and 22-30-6. However, Pasek has failed to provide argument, failed to identify any alleged error, and failed to cite authority for his request. "The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived.” State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599 (citing State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994); State v. Dixon, 419 N.W.2d 699, 701 (S.D.1988)).

      . Pasek also asserts that, during trial, the State elicited testimony that Pasek had previously escaped from custody. However, our review of the cited portion of the transcript reflects no other testimony disclosing Pasek's escape from jail.

      . This Court has stated that "evidence of 'other acts’ may be admissible as res gestae evidence, ... an exception to.SDCL 19-12-5 or Federal Rule 404(b).” Id.

      . SDCL 22-7-8 provides:
      If a defendant has been convicted of three or more felonies in addition to the principal felony and one or more 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 to the sentence for a Class 1 felony.

      . A crime of violence is defined in 22-1-2(9), which provides:
      "Crime of violence,” any of the following crimes or an attempt to commit, or a conspiracy to commit, any of the same: murder, manslaughter, rape, criminal pedophilia, aggravated assault, riot, robbery, burglary in the first or second degree, arson, kidnapping, felony sexual contact as defined in 22-22-7 and 22-22-19.1, felony child abuse as defined in 26-10-1, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device.

      . SDCL 22-7-9 provides
      A prior conviction may not be considered under either 22-7-7 [conviction of one or two prior felonies] or 22-7-8 [conviction of three or more felonies] 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.

      . Flittie I involved the question of double jeopardy.

      . We also see no prejudicial error even if the federal convictions only constituted one transaction. SDCL 22-7-7, another enhancement statute, provides the same effective enhancement in this case for one prior felony. It provides that with one prior felony conviction “the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe.” Because Pasek's principal felony of first degree robbery was a Class 2 felony, enhancement to the next more severe class required an enhancement to a Class 1 felony, the same as under SDCL 22-7-8 and 22-7-9.

      . SDCL 23A-27-5 provides:
      A presentence investigation may be ordered in the discretion of a court. The court services officer of a court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.
      The report shall not be submitted to a court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.


author: KONENKAMP, Justice.

text:
    2004 SD 137
    Gary W. and Patricia A. GRAVES, Plaintiffs and Appellants, v. Thomas R. and Carla Sue DENNIS, Defendants and Appellees.
    No. 23205.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 15, 2004.
    Decided Dec. 29, 2004.

      John K. Nooney of Thomas, Nooney, Braun, Solay & Bernard, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
    Raymond R. DeGeest, Rapid City, South Dakota, Attorney for defendants and ap-pellees.
   KONENKAMP, Justice.

[¶ 1.] Gary W. and Patricia A. Graves, plaintiffs, brought a declaratory judgment action against defendants, Thomas R. and Carla Sue Dennis. Plaintiffs sought an order determining their rights on a road easement granted in 1981. Specifically, they wanted defendants to remove obstructions on the road. After the action began, plaintiffs learned that a separate 1978 easement existed. They amended their complaint to seek a ruling on both easements. After a bench trial, the circuit court ruled that defendants had obstructed plaintiffs’ use and enjoyment of the 1981 easement. Defendants were required to repair the road. However, the court found that the 1978 easement was abandoned. On appeal, we affirm both rulings because the creation and exclusive use of the 1981 easement coupled with the nonuse of the 1978 easement constituted an effective abandonment of the earlier easement.

Background

[¶ 2.] In November 1982, plaintiffs purchased a piece of real property near Rapid City, South Dakota. The property, referred to as Lot 1, is described in two parcels, north and south, because at one point each parcel had a different owner. The legal description of plaintiffs’ property is

The North 165' of the West 264' and the South 165' of the West 264' of Lot 1 in the Southeast Quarter of the Northeast Quarter (SE/áNE^) of Section 21, Township 1 North, Range 7 East of the Black Hills Meridian, Pennington County, South Dakota.

The added emphasis is inserted to illustrate the two-parcel description. In February 2002, defendants acquired Lot 11, an abutting piece of land. The legal description is

Lot 11 in Block 1 of Vista Hills Number 2, Pennington County, South Dakota.

[¶ 3.] Plaintiffs’ predecessors in interest were William R. and Nelva C. Blenner. Before plaintiffs purchased the property, the Blenners made two easement agreements: the first was in 1978; the second in 1981. The 1978 easement was made when the Blenners owned both Lot 11 and the south portion of Lot 1. The easement granted ingress and egress across Lot 11 to Elson J. and Anna L. Leavitt and Rita S. Larson, the owners of the north portion of Lot 1. The easement ran from the north parcel of Lot 1 through Lot 11 to provide access to the main road, Pine Tree Drive. There is no evidence that this easement was ever used.

[¶ 4.] Subsequently, the Blenners sold Lot 11 to Thomas C. Vaughn. At that point, the Blenners owned only the south portion of Lot 1. However, following the sale of Lot 11 to Vaughn, the Blenners became the outright owners of both the north and south portions of Lot .l. The Blenners then obtained an easement from Vaughn, running from the south portion of Lot 1 across Vaughn’s Lot 11. In sum, although the Blenners had created an easement running from the north portion of Lot 1 through Lot 11 with Leavitt and Larson in 1978, an easement which was apparently never used, the Blenners subsequently entered into the 1981 easement with Vaughn, and used the 1981 easement exclusively for access to Pine Tree Drive.

[¶ 5.] In 1982, the Blenners sold all their interest in Lot 1 to plaintiffs. Like the Blenners,-plaintiffs used the 1981 easement. They never used the 1978 easement. They were unaware of its existence, although it was of record with the Pennington County Register of Deeds* While plaintiffs and Vaughn were neighbors, Vaughn built a two-stall garage on his property. The garage was located directly on the 1978 easement. Before constructing the garage, Vaughn conferred with plaintiffs and inquired whether there were any problems with the garage’s location. Plaintiffs did not object to the placement of the garage at the time nor did they express any problems with Vaughn after he built it.

[¶ 6.] In February 2002, Vaughn sold Lot 11 to defendants. - Beginning in the spring of 2003, plaintiffs and defendants had several disputes over the 1981 road easement. Most, if not all, of the disputes concerned the manner in which the road was used. Defendants called the police many times to complain about the rate of speed that plaintiffs, their family members, and their guests drove on the access road* On one occasion, defendants sought law enforcement help to disperse a crowd outside their residence when a visitor’s vehicle became incapacitated on the easement road. To slow down traffic, defendants created two speed dips on the road. These obstructions impaired plaintiffs’ access to their property.

[¶ 7.] Plaintiffs sued for damages and a declaratory judgment on their rights to the 1981 easement. After the action began, plaintiffs learned that the earlier 1978 easement existed. They amended their complaint to include the 1978 easement, seeking a ruling on both easements. The court found that the speed dips defendants had constructed on the road hindered or restricted plaintiffs’ use of the 1981 easement and ordered them removed. The court also found that a portion of a retaining wall located within the thirty-foot easement had to be relocated.

[¶ 8.] As for the 1978 easement, the court ruled that it had been' effectively abandoned when the 1981 easement was created. Defendants do not appeal any of the court’s rulings, but plaintiffs complain that they are entitled to maintain both the 1978 and 1981 easements.

Standard of Review

[¶ 9.] “We review a trial court’s findings of fact under the clearly erroneous standard.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citation omitted). “Clear error is shown- only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724)). In declaratory judgment actions, “this Court ‘has an obligation to reach its legal conclusions independent from the conclusions reached by the trial court.’ ” City of Rapid City v. Anderson, 2000 SD 77, ¶ 6, 612 N.W.2d 289, 291 (citations omitted).

Analysis and Decision

[¶ 10.] Plaintiffs believe the trial court erred when it found that the 1978 easement had been abandoned, thereby extinguishing it. Since Vaughn and the Blenners did not discuss the 1978 easement when they agreed to the 1981 easement, and since plaintiffs were unaware of the 1978 easement, plaintiffs contend there is no evidence of intent to abandon the 1978 easement. South Dakota has a' statute specifically dealing with extinguishment of servitudes. SDCL 43-13-12 provides: “A servitude is extinguished by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.”

[¶ 11.] Under this statute, “there must be an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement. Mere nonuse of an easement, created by grant, is insufficient to satisfy this requirement.” Hofmeister v. Sparks, 2003 SD 35, ¶ 13, 660 N.W.2d 637, 641 (citing Clark v. Redlich, 147 Cal.App.2d 500, 305 P.2d 239, 244 (1957)). However, a substituted access may serve as evidence of abandonment, but that by itself is not dispositive. Id. Use of-a substitute road may be evidence of an abandonment of the old road; however, “[t]he mere use of a new right-of-way will 'not extinguish the old. .There must also be- an abandonment by non-use of the old right-of-way.” Id. (quoting Shippy v. Hollopeter, 304 N.W.2d 118, 122 (S.D.1981)). Those claiming abandonment carry the burden of showing by clear and convincing evidence an intent to abandon the easement. Cleveland, 1998 SD 91, ¶ 26, 582 N.W.2d at 725; see Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852, 859 (1999).

[¶ 12.] There is no evidence that the 1978 easement has'ever been'used since it was created two and a half decades ago. The only roadway shown in the photographs admitted in evidence is the one reflecting the 1981 easement. According to the Restatement, “[a] servitude benefit is extinguished by abandonment when the beneficiary relinquishes the rights created by a ■ servitude.” RESTATEMENT (THIRD) OF PROPERTY § 7.4 (2000). “A finding of abandonment is usually based on circumstantial evidence rather than on direct expressions of intent....” Id. § 7.4 cmt. a.

Failure to take advantage of a servitude benefit, even for a lengthy period, is seldom sufficient to persuade a court that abandonment has occurred. Some additional action on the part of the beneficiary inconsistent with continued existence of the servitude is normally required, although the amount of additional evidence required tends to diminish as the period of nonuse grows longer. In cases where a very long period of time has passed, abandonment may be found even without other evidence of intent.

Id. § 7.4 cmt. c.

[¶ 13.] We conclude that the elements necessary for abandonment of the 1978 easement are present here: exclusive use of the new right of way and nonuse of the old right of way. After the Blenners gained ownership of both the north and south parcels of Lot 1, they obtained a new easement in. 1981. They never used the old easement nor, apparently, did the previous owners. Thus, the Blenners had two easements, both to Lot 1 and both allowing access from the same main road at the same point. After plaintiffs purchased Lot 1 from the Blenners, they never used the 1978 easement. Furthermore, plaintiffs and Vaughn had discussed the construction of a two-stall garage on Lot 11. Although neither Vaughn nor plaintiffs were aware of the 1978 easement, the placement of the garage was directly on that easement.

[¶ 14.] In sum, the 1978 easement had never been used, and, in fact, no road had ever been created for that easement. Although separate easements might have been necessary when the north and south portions of Lot 1 had different owners, for more than twenty-five years both portions have had the same owner. Both easements provide access to Lot 1, and both converge before intersecting with Pine Tree Drive. We conclude that the trial court did not err in finding that the 1978 easement was abandoned and extinguished.

[¶ 15.] Affirmed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.


author: PER CURIAM.

text:
    2004 SD 135
    STATE of South Dakota, Plaintiff and Appellant, v. Herman L. JOHNSON, Sr., and Herman L. Johnson, Jr., Defendants and Appellees.
    Nos. 23326, 23327.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Dec. 29, 2004.

      John H. Fitzgerald, Lawrence County States Attorney and Brooke K. Steele, Legal Intern, Attorneys for plaintiff and appellant.
    Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for Amicus Curiae Attorney General.
    Joseph Kosel, Deadwood, South Dakota, Attorney for defendant and appellee Herman L. Johnson Sr.
   PER CURIAM.

[¶ 1.] The Lawrence County States Attorney appeals the appointment of two separate judges to preside over the criminal trials of Herman L. Johnson, Senior and Herman L. Johnson, Junior, contending such appointments were void from the beginning and improperly severed the trial of these defendants.

FACTS

[¶ 2.] Herman L. Johnson, Senior, (hereinafter Senior) and Herman L. Johnson, Junior, (hereinafter Junior) (collectively Defendants) were jointly indicted for possession of a controlled drug or substance with intent to distribute (cocaine); possession of a controlled drug or substance (cocaine); and, conspiracy .to distribute a controlled drug or substance (cocaine). The Honorable Timothy R. Johns was the initial circuit court judge assigned in this matter. Attorney for Senior informally requested Judge Johns to recuse himself. That request was denied on June 29, 2004. A formal affidavit for change of judge was filed that same day. The Honorable Warren G. Johnson, presiding circuit court judge, reviewed that affidavit and assigned himself to preside in the action as to both defendants. An order to that effect was entered on June 30, 2004.

[¶ 3.] The Lawrence County States Attorney filed an informal request for Judge Johnson to recuse himself and an affidavit for change of judge on July 1, 2004. Judge Johnson entered an order on that same day granting the request for change of judge and assigning the Honorable Jerome A. Eckrieh to .preside over this matter as to both defendants. On July 8, 2004, Junior’s attorney filed an informal request with Judge Eckrich to disqualify himself. That request was denied. Thereafter, Junior’s attorney filed a formal affidavit for change of judge. Judge Johnson again reviewed that request. He entered an order assigning the Honorable John W. Bastían to preside only over Junior’s case.

[¶ 4.] As a result, the cases are now proceeding before different circuit court judges appointed by Judge Johnson. State contends (1) that the assignment of judges was void. as Judge Johnson was without jurisdiction to assign judges after he was disqualified from presiding in this matter; and, (2) that the assignment of Judge Bastían for Junior’s case effectively severed this matter without proper notice and hearing. The Defendants do not resist the State’s position. The State petitioned for intermediate appeal. An order granting intermediate appeal was entered by this Court on July 23, 2004.

STANDARD OF REVIEW

[¶ 5.] The issues on appeal involve a question of statutory interpretation. “Statutory interpretation is a question of law, which we review de novo.” In re Estate of Klauzer, 2000 SD 7, ¶ 22, 604 N.W.2d 474, 479.

Statutory construction is an exercise to determine legislative intent. In analyzing statutory language we adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of statutory language.

Petition of West River Electric Association, 2004 SD 11, ¶ 15, 675 N.W.2d 222, 226 (internal citations omitted).

ANALYSIS

ISSUE ONE

[¶ 6.] Whether Judge Johnson had jurisdiction to reassign this case after he was disqualified pursuant to SDCL 15-12-32.

[¶ 7.] State contends that Judge Johnson, after he was disqualified by an affidavit for change of circuit judge, did not have jurisdiction to appoint Judge Eckrich to act in this matter. As a result, State argues that Judge Johnson’s assignment to Judge Eckrich was void and, therefore, Judge Eckrich is without jurisdiction to act in this matter. Likewise, State contends the subsequent assignment of Judge Bastían to Junior’s case by Judge Johnson was also void and deprived Judge Bastían of jurisdiction.

[¶ 8.] The relevant statutory authority is SDCL 15-12-32. That statute provides:

The presiding judge of the circuit court or in his absence or disqualification as the judge sought to be changed, the senior judge of the circuit shall review the affidavit and certification, if any, and [if] it is determined that the affidavit is timely and that the right to file the affidavit has not been waived or is not otherwise legally defective, shall assign some other circuit judge or magistrate of that circuit as is appropriate to preside in such action, by filing an order of such appointment with the clerk of the court of the county wherein said action is pending. From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter.

SDCL 15-12-32 (emphasis added). “When an affidavit for change of judge is filed, the judge shall proceed no further and shall thereupon be disqualified as to any further acts with reference thereto unless otherwise ordered to proceed by the presiding judge.” State v. Peterson, 531 N.W.2d 581, 582 (S.D.1995) (citing SDCL 15-12-22). The terms of SDCL 15-12-32 are clear and unambiguous; if the presiding judge is disqualified from a case the senior judge of the circuit should review the affidavit for a change of judge and act accordingly. Judge Johnson continued to act in this matter by considering an affidavit for change of judge directed at himself and then subsequently assigning judges to preside in this matter despite the express statutory prohibition. “Once disqualified by the filing of an affidavit for change of judge, the challenged judge has no jurisdiction to consider the propriety of the affidavit or to continue with the action.” Id. at 583.

[¶ 9.] “As a consequence of continuing with the case'Without jurisdiction, all subsequent orders and judgments are void.” Id. (string citations omitted). “Jurisdiction vests in the reassigned judge only from the time of the filing of such [valid] order.” State v. Baldwin, 299 N.W.2d 820, 821 (S.D.1980). In the absence of a properly filed order the reassigned judge has no jurisdiction to act. See id. (holding trial court was without jurisdiction to proceed when a formal assignment order was not entered prior to trial). As a result, the assignment orders by Judge Johnson after his disqualification were a nullity and all actions taken thereafter by Judge Eckrich and Judge Bastían are void as they lacked jurisdiction.

ISSUE TWO

[¶ 10.] Whether the provisions of SDCL 15-12-32 can be utilized to sever co-defendants through the appointment of a substitute judge.

[¶ 11.] State maintains that Judge Johnson, the appointing judge, improperly-severed the trial of -these joint defendants by appointing a different judge only for Junior following his affidavit for change of judge. Although Judge Johnson previously made the two prior disqualifications effective as to both co-defendants, for some reason that was not done with the final appointment of a substitute judge. As a result, Senior’s and Junior’s cases are now before different trial judges without there having been a motion to sever by either the defendants or the State.

[¶ 12.] Senior and Junior were jointly indicted for these drug charges. This procedure is specifically allowed by SDCL 23A-6-24. That statute provides:

Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. ,

SDCL 23A-6-24. Furthermore, this Court has recognized the “law generally favors joint trial for reasons of judicial economy and presentation of the whole of an alleged act or transaction at one time.” State v. Andrews, 393 N.W.2d 76, 78 (S.D.1986). “The general rule has evolved that persons .jointly indicted should be tried together. This is especially true where, as here, one crime may be proved against two or more defendants from the same evidence.” Id.

[¶ 13.] Moreover, each party has a right to challenge the joinder of co-defendáhts. SDCL 23A-11-2. That statute provides: •

If- it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance, of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce into evidence at the trial.

Id. “When considering a motion for severance, the court must balance the right of a defendant to a fair trial against the interests of judicial efficiency. The court must consider not only possible prejudice to the defendant seeking severance, but also possible prejudice to the government because of two time-consuming, expensive, and duplicitous trials.” Andrews, 393 N.W.2d at 79 (citations omitted). A trial court’s decision to sever co-defendants must be a reasoned decision based on the appropriate factors. State v. Jenner, 434 N.W.2d 76, 80-81 (S.D.1988). “In the absence of a legal ground, there should be no order for severance.” Andrews, 393 N.W.2d at 79.

[¶ 14.] In this situation, there is no showing that the appointing judge made any consideration for these factors before effectively severing the co-defendants. Indeed, it would have been inappropriate for him to proceed to such an inquiry. .There is nothing in SDCL ch 15-12 (Change of Circuit Judge or Magistrate) to suggest that an affidavit for removal of a trial judge is the appropriate procedural device or forum to make such a consideration. Rather, SDCL 15-12-32 specifically limits the consideration on an affidavit for the change of a judge to whether or not “the affidavit is timely and that the right'to file the affidavit has not been waived or is. not otherwise legally defective.” This properly filed affidavit was effective as to each co-defendant and the ease should have been assigned accordingly. See State v. Reiman, 284 N.W.2d 860, 866 (S.D.1979).

[¶ 15.] Therefore, the orders entered by Judge Johnson following his disqualification are vacated and this matter-is remanded for the appointment of a trial judge consistent with the provisions of SDCL ch 15-12.

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

      . The Attorney General also appeared in this matter as Amicus Curiae in support of reversal.

      . Judge Johnson, the presiding judge, is also the most senior judge in the Fourth Judicial Circuit. Given his disqualification, the next most senior judge is to consider the affidavit for change of judge pursuant to SDCL 15 — 12— 32. The next most senior judge is Judge Johns, who was disqualified prior to Judge Johnson and is therefore also unable to rule on the affidavit for change of judge. Proceeding down the line of seniority is Judge Bas-tian, who has not been disqualified by any of the parties in this matter; therefore, consideration of the affidavit for disqualification of Judge Johnson is properly within his purview. This is the situation in which the parties would have found themselves if Judge Johnson had not considered the affidavit and ordered reassignment after his disqualification, a decision which was a nullity.