author: NEUMANN, Justice.

text:
    2001 ND 46
    HALL FAMILY LIVING TRUST BY Kenneth H. HALL, Trustee, Plaintiff and Appellee, v. MUTUAL SERVICE LIFE INSURANCE COMPANY, a corporation, Defendant and Appellant.
    No. 20000188.
    Supreme Court of North Dakota.
    March 5, 2001.
    Peter K. Halbach, Haugland, Halbach and Halbach, Devils Lake, ND, for plaintiff and appellee.
    Dwain E. Fagerlund, Johannson, Rust, Fagerlund, Yon &■ Stock, P.A., Crookston, MN, for defendant-appellant.
   NEUMANN, Justice.

[¶ 1] Mutual Service Life Insurance Company appealed from a summary judgment awarding the Hall Family Living Trust (“Trust”) payment on a $39,000 and a $10,000 annuity. We conclude there are genuine issues of material fact which preclude summary judgment, and we reverse and remand for further proceedings.

I

[¶ 2] On May 21, 1985, Johannes Holl (a/k/a Jack Hall) applied to Mutual Service for a $39,000 annuity, and on November 1, 1985, he applied to Mutual Service for a $10,000 annuity. Holl applied for both annuities through his nephew, Mutual Service agent Warren Hall, and both applications indicated Holl paid the initial premiums. Mutual Service claims it did not receive the applications and premiums, or issue or deliver the annuities.

[¶ 3] In 1991, Holl established the Trust, designating himself and Warren Hall as co-trustees. Holl assigned all his assets to the Trust, and he also executed a pour-over will leaving any property to the Trust. In August 1993, Warren Hall died of a self-inflicted gunshot wound, and Kenneth Hall was appointed successor trustee for the Trust. Holl died in June 1994.

[¶ 4] In 1994, Kenneth Hall, as trastee for the Trust, asked Mutual Service to honor the two annuities. Mutual Service denied the request, claiming the annuities had not taken effect. The Trust made a probate claim against Warren Hall’s estate for conversion, fraud, and breach of trust. The Trust settled with Warren Hall’s estate for $7,500, expressly reserving a breach of contract claim against Mutual Service.

[¶ 5] The Trust sued Mutual Service for breach of contract for the amount of the two annuities, plus earnings and interest. The trial court granted the Trust summary judgment, concluding Mutual Service was liable under contract and agency law for the acts of Warren Hall in his capacity as agent for the company. The court concluded the Trust was entitled to the amount of the annuities, plus earnings and interest. Mutual Service appealed.

II

[¶ 6] We review this appeal under our standards for summary judgment, which is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Mandan Educ. Ass’n v. Mandan Pub. Sch. Dist., 2000 ND 92, ¶6, 610 N.W.2d 64. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id.

III

[¶ 7] Mutual Service argues the evidence does not support the formation of a contract between it and Holl; that there was no evidence it accepted the applications for the annuities, or delivered the policies to Holl; and that Warren Hall’s authority to contract was limited by the annuity applications and the scope of his apparent authority is a question of fact.

[¶ 8] Holl signed applications for both annuities, and they provided:

I declare that all statements made in this application, including any made on the reverse side hereof, are, to the best of my knowledge and belief, true and complete, and agree that:
1. Those statements form a part of any policy that Mutual Service Life Insurance Company issues on the basis of this application.
2. Mutual Service Life Insurance Company is not bound by any statement made by or to any agent unless the statement is written in this application.
3. Any policy issued on the basis of this application does not take effect until it is delivered and the first premium is paid during the proposed annuitant’s lifetime.

[¶ 9] In National Farmers Union Prop. & Cas. Co. v. Michaelson, 110 N.W.2d 431 (N.D.1961), and Godfrey v. North Dakota Farmers’ Mut. Tornado & Cyclone Co., 63 N.D. 418, 248 N.W. 527 (1933), this Court considered similar language in applications for insurance.

[¶ 10] In Michaelson, 110 N.W.2d at 434, the mother of an applicant for automobile insurance signed an October 9, 1958, application which identified a policy period from “10 mo. 9 day 58 yr.”, but said “no insurance shall become effective until this application is approved by the Company.” When the mother applied for the insurance, she delivered to the agent a check for a premium for six months of insurance. The application, check, and a forwarding letter were received by the company on October 14. Because the applicant had recently been canceled by another insurance company, the agent requested a “night message” approving or rejecting the application. However, the day following receipt of the application, the company sent a “ ‘Speed Memo’ ” by ordinary mail, which said the company could not confirm coverage before completion of an investigation of the risk. The company advised the agent if immediate coverage was desired, the applicant’s check would be returned. The check was not cashed, and on October 19, the applicant was killed in an automobile accident. On October 21, the company rejected the application and returned the check.

[¶ 11] Relying on the language in the application which said no insurance was effective until the application was approved by the company, we concluded the company’s agent did not bind the company from the time of the application. Id. at 436-37. We said there was no evidence the agent made oral representations or orally agreed to cover the application from the time of the application. Id. at 437. We also concluded the company was not liable in tort for negligent delay in acting on the application. Id. at 438. We said the doctrines of waiver and estoppel did not operate to create a contract, and we held there was no insurance policy in force when the applicant was killed in the accident. Id. at 439.

[¶ 12] In Godfrey, 63 N.D. at 425-26, 248 N.W. at 530, we concluded the evidence did not establish an insurance company entered into a contract to insure an applicant’s buildings. There, the applicant submitted a written application for insurance with a promissory note for payment of the premium. The application specifically stated it “ ‘shall have been received and approved by [the company secretary] before insurance takes effect, no liability of the Company attached under this application before such receipt and approval.’ ” 63 N.D. at 421, 248 N.W. at 528. The company secretary immediately returned the promissory note and application, and informed the agent the application could not be accepted until the applicant paid one-fifth of the premium in cash. The agent did not inform the applicant, and a windstorm subsequently damaged some of the applicant’s buildings. We held there was no insurance contract, because the application was never approved by the secretary. 63 N.D. at 425-26, 248 N.W. at 530.

[¶ 13] Here, the applications for both annuities unambiguously said “[a]ny policy issued on the basis of [the] application^ did] not take effect until it [was] delivered.” There was no evidence Mutual Service delivered the two annuities to Holl, or to the Trust. Under Godfrey and Michaelson, the two annuities did not take effect because the applications unambiguously required delivery. See Ulledalen v. United States Fire Ins. Co., 74 N.D. 589, 612, 23 N.W.2d 856, 868 (1946) (stating contract of insurance may be consummated without the actual or manual delivery of policy, unless delivery is required by agreement of parties).

[¶ 14] The trial court nevertheless decided Mutual Service was liable under agency law for the acts of its agent, Warren Hall.

[¶ 15] In Greenwood v. American Family Ins. Co., 398 N.W.2d 108 (N.D.1986), we considered a similar issue in a case where applicants for credit life insurance sued the insurance company and its agent for fraud, negligent misrepresentation, and breach of contract upon denial of a claim for benefits following the death of a key employee of the applicants’ company. The insurance company claimed it was not liable for the alleged representations and conduct of its agent, because the application for insurance said:

“IT IS AGREED: ... 3) no agent or medical examiner has authority to waive the answer to any question in the application, to pass on insurability or accept risks, to waive any of the Company’s rights or requirements or to make or alter any contract; ... 5) except as may be provided in the Conditional Receipt bearing the same number and same date as this application no insurance shall take effect unless a policy issued by the Company is accepted by the applicant and the full first premium is paid prior to any change since the date of application in the insurability of and during the lifetime and good health of the proposed insured; ...”

Id. at 112-13.

[¶ 16] We said that language did not, as a matter of law, exonerate the insurance company from potential liability. Greenwood, 398 N.W.2d at 113. We recognized an insurer is bound by the acts of its agent which were within the scope of the agent’s apparent authority, except for those acts as to which the insured has notice that the agent’s authority has been limited. Id. We said the application placed some limitations on the agent’s authority, but it did not unconditionally divest the agent of all authority to speak on the insurer’s behalf. Id. We said the application did not, as a matter of law, limit the agent’s authority to inform a client that an insurance policy had been issued and coverage was in effect, and we concluded the insurance company may be subject to liability if the agent made assurances of coverage to the applicants. Id. We reversed a summary judgment and remanded for resolution of the disputed issues of material fact. Id. at 114. Although Mutual Service claims there was no indication the applicants’ breach of contract claim survived summary judgment, our remand was not limited to only the tort claims against the insurance company. See id. at 113-14.

[¶ 17] In 1983, Mutual Service sponsored Warren Hall’s application for a supplemental license in North Dakota with a certification that Mutual Service assumed full and complete responsibility for his acts without regard to any technical distinction between their relationship and the principal and agent relationship. Warren Hall was an authorized agent for Mutual Service when Holl applied for these annuities. There was no evidence Mutual Service received the premiums, or any other documents for the annuities. The Trust submitted evidence that Holl paid for the annuities and Warren Hall falsified financial statements regarding the annuities. After Warren Hall’s death, authorities discovered the two applications in his briefcase in his ear. There was evidence Warren Hall was acting as an agent for Holl during some of the time relevant to the applications, and Holl received some status reports for annuities, which were apparently prepared by Warren Hall. Under these circumstances, viewing the evidence in the light most favorable to Mutual Service and giving it the benefit of all favorable inferences which reasonably can be drawn from the evidence, we agree with Mutual Service that “[w]hether Warren Hall had apparent authority to issue an annuity contract without delivery, is at best, a disputed question of fact,” which is inappropriate for summary judgment. See Greenwood, 398 N.W.2d at 114; First Nat’l Bank and Trust Co. v. Scherr, 467 N.W.2d 427, 430 (N.D.1991).

IV

[¶ 18] We reverse the summary judgment and remand for proceedings consistent with this opinion.

[¶ 19] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.

      . Mutual Service's appeal is from "an order entered on May 4, 2000,” which granted the Trust summary judgment. There is a subsequently entered judgment consistent with the May 4 order, and we treat the appeal as an appeal from that judgment. See Olson v. Job Serv., 379 N.W.2d 285, 287 (N.D.1985).

      . On appeal Mutual Service also raises issues about equitable estoppel, the statute of limitations, release, and offset. The trial court did not decide any of those issues, and we do not address them either.


source: Caselaw Access Project

author: SABERS, Justice GILBERTSON, Justice MILLER, Chief Justice

license: Public Domain

text:
    2001 SD 25
    STATE of South Dakota, Plaintiff and Appellee, v. Carson J. QUINN, Defendant and Appellant.
    No. 21435.
    Supreme Court of South Dakota.
    Argued Nov. 30, 2000.
    Decided Feb. 28, 2001.
    Rehearing Denied April 10, 2001.
    Mark Barnett, Attorney General, Timothy G. Bartlett, Ann C. Meyer, Paul E. Bachand, Assistant Attorneys General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell and Carpenter, and Ronald W. Banks of Banks, Johnson, Colbath & Kerr, Rapid City, SD, Attorneys for defendant and appellant.
   SABERS, Justice

[¶ 1.] Quinn provided funeral services to indigent persons and received burial assistance payments from Pennington County. In addition to these payments, Quinn collected monies from other sources. The State alleges the failure of Quinn to refund payment to the county after collecting additional monies from other sources constitutes theft by deception. In a court trial based on a stipulation, Quinn was found guilty of one count of theft by deception based upon implied contract. We reverse because the stipulated facts fail to prove beyond a reasonable doubt the count as charged.

FACTS

[¶ 2.] The parties entered into a stipulation of facts for the purpose of presenting this case to the trial court without a jury for a determination of guilt or acquittal. The stipulated record reveals that Quinn received indigent burial assistance payments from Pennington County for the funerals of William Leonesio and Florence Alice Horned Antelope. After conducting these funerals, Quinn submitted bills to Pennington County for his services. The bill for the Leonesio funeral was $2527.80 and the bill for the Horned Antelope funeral was $2850.00. The amount of the burial assistance payments he received for each funeral was $950. The payment request submitted to the county for the Leo-nesio funeral provided that additional charges would be billed separately for the grave, opening and closing the grave, and grave box.

[¶ 3.] Quinn submitted a funeral statement to Natalie Leonesio, Leonesio’s wife, for $3,879.80 and the Oglala Sioux burial assistance program for Horned Antelope’s funeral service for $1400. Quinn received payments from Natalie Leonesio of $1007.56 and $501.97. As indicated, the stipulation provides that Quinn submitted funeral statements “for monies in excess of the county burial payment and received monies over and above said amount which were not paid over to Pennington County.”

[¶ 4.] Quinn acknowledged that he had received a copy of the Pennington County burial assistance guidelines. These guidelines purport to prohibit Quinn from collecting additional monies without reimbursing the county. However, these guidelines were never validly enacted by the county. Additionally, no written contract existed between Pennington County and Quinn for indigent burial services.

[¶ 5.] This stipulation was presented to the trial court for a finding of guilt or acquittal on two counts of theft by deception (SDCL 22-30A-3 and SDCL 22-30A-17(1)). The stipulation provided that the remaining fifteen counts of the indictment against Quinn would be dismissed with prejudice. Regardless of the outcome, Quinn stipulated to pay $21,610.61 as restitution to the county without same constituting an admission of guilt. Quinn was acquitted on the second count relating to the charges for the Horned Antelope funeral.

[¶ 6.] The trial court found Quinn guilty of one count of theft by deception for obtaining money from Natalie Leonesio in an amount over $500, a felony. The count alleged:

That on or about the 14th day of May, 1997, in the County of Pennington, State of South Dakota, Carson J. Quinn did commit the public offense of theft by deception (SDCL 22-30A-3, 22-30A-17(1) in that he did create or reinforce a false impression as to law to obtain property of Natalie Leonesio in an amount over $500, with intent to defraud her thereof.

(Emphasis added).

[¶ 7.] Quinn appeals raising four issues:

1. Whether the Pennington County indigent burial guidelines can be used to establish any element of the offense charged.
2. Whether Quinn was improperly prosecuted for violating a county resolution which is a civil matter.
3. Whether the trial court could find and base a conviction on an implied contract with Pennington County.
4. Whether the stipulated facts are sufficient to establish theft by deception as charged beyond a reasonable doubt.

STANDARD OF REVIEW

[¶ 8.] “The trial court made its decision based on a stipulation of facts. Therefore, we review under a de novo standard.” State v. Herrboldt, 1999 SD 55, ¶5, 593 N.W.2d 805, 807. “There is no presumption in favor of the trial court’s determination. It is our duty to review the evidence [permitted by the stipulation] and determine the issues involved as though presented here in the first instance.” State v. Abourezk, 359 N.W.2d 137, 142 (S.D.1984); see supra note 1.

[IT 9.] 1. WHETHER THE PENNINGTON COUNTY INDIGENT BURIAL GUIDELINES COULD BE USED TO ESTABLISH ANY ELEMENT OF THE OFFENSE CHARGED.

[¶ 10.] SDCL 28-17-4 provides that “the county shall allow the funeral director ... a sum to be established by resolution of the board of county commissioners in such county at their organizational meeting.” A local government is only allowed to “take official action through ordinances and resolutions.” Appeal of Jackpine Gypsies Motorcycle Club, 395 N.W.2d 593, 595 (S.D.1986). The State has stipulated that the indigent burial guidelines were never properly enacted in accord with the process established by South Dakota law. SDCL ch. 7-18A. “A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.” State v. Hansen, 75 S.D. 476, 68 N.W.2d 480, 481 (1955) (citations omitted). Therefore, by failing to follow the proper procedure for enacting the indigent assistance guidelines, the county’s actions are a legal nullity. Similarly, when a statute is unconstitutional it is void and “is to be treated as though it never existed.” Weegar v. Bakeberg, 527 N.W.2d 676, 678 (S.D.1995).

[¶ 11.] Nevertheless, the State asserts that Quinn’s admission that he had been fully informed of the guidelines is sufficient to establish specific intent to violate our theft by deception statutes. Those guidelines require Quinn to reimburse the county for monies recovered from third parties and that no other agreements for any purpose be established. The State asserts that Quinn’s awareness of these guidelines create an “implied contract” binding him to the guidelines, thereby constituting theft by deception when he failed to refund the payment to the county. We are not convinced by this argument.

[¶ 12.] “The obligation or duty of a county to reheve and support the poor and indigent is purely statutory.” Hamlin County v. Clark County, 1 S.D. 131, 45 N.W. 329, 331 (1890); see also Roane v. Hutchinson County, 40 S.D. 297, 167 N.W. 168, 168 (1918). By failing to follow statutory procedure for enacting a valid resolution, these guidelines do not create an obligation. “[A] void ordinance confers no rights and imposes no obligations as an invalid ordinance does not furnish any more authority or support than an unconstitutional statute.” 62 CJS Municipal Corporations § 309 at 455 (1999). Therefore, the guidelines did not prohibit Quinn from collecting the reasonable value of his services from the decedent’s family or estate.

[¶ 13.] We hold that the invalid indigent assistance guidelines cannot support a conviction, as those guidelines are a legal nullity.

[¶ 14.] 2. WHETHER QUINN WAS IMPROPERLY PROSECUTED FOR VIOLATING A COUNTY ORDINANCE.

[¶ 15.] In his brief, Quinn maintains that “the issue is whether [Quinn] is, in fact, being prosecuted for violating the guidelines. In light of our disposition of issue 1, it is clear the guidelines were invalid and cannot support any element of the crime charged. This prosecution arises from his actions of obtaining money through an alleged act of deception. Conduct to obtain money by deception is not exclusively a civil matter. SDCL 22-30A-3, 22-30A-17(l). Issues of civil liability are peripheral to this matter and we do not address them here. At any rate, Quinn cannot be prosecuted, directly or indirectly, for violating the indigent assistance guidelines.

[¶ 16.] 3. WHETHER THE TRIAL COURT COULD FIND AND BASE A CONVICTION ON AN IMPLIED CONTRACT WITH PENNINGTON COUNTY.

[¶ 17.] We do not address issue 3 as we have disposed of it in issue 1. The invalidly enacted ordinance is void and cannot form the basis for an implied contract. Additionally, the stipulated facts are insufficient to support any implied contract, as they merely indicate Quinn received a copy of the guidelines and do not detail any further actions between the parties.

[¶ 18.] Therefore, we turn directly to the focus of this appeal.

[¶ 19.] 4. WHETHER THE STIPULATED FACTS ARE SUFFICIENT TO SUPPORT A CONVICTION FOR THEFT BY DECEPTION.

[¶ 20.] Quinn was charged with violating SDCL 22-30A-3, which provides in relevant part:

Any person who obtains property of another by deception is guilty of theft. A person deceives if with intent to defraud he:
1. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind.
2. Fails to correct a false impression which the deceiver previously created or reinforced.

Quinn was charged in connection with SDCL 22-30A-17, which classifies a theft over $500 as grand theft.

[¶ 21.] Quinn urges this Court to hold that his actions would merely constitute a breach of contract but not theft by deception. This is somewhat similar to the argument advanced by the defendants in State v. Hurst, where the defendants asserted that their actions only constituted a breach of contract when they collected money in exchange for a promise to incinerate medical waste which they instead buried. 507 N.W.2d 918, 919 (S.D.1993). We rejected this position in Hurst. “The statute requires an act of deception to obtain another’s property. The statute goes on to require ‘intent’ and states that such ‘intent to defraud’ exists if a person ‘creates or reinforces a false impression.’ ” State v. Dale, 439 N.W.2d 98, 107 (S.D.1989). For a conviction under the statute “the actor must have a purpose to deceive.” Hurst, 507 N.W.2d at 920.

[¶ 22.] Quinn puts much empha§is on the fact that the total amount he recovered from Leonesio did not exceed a reasonable amount for funeral expenses. “A matter can have ‘pecuniary significance’ [under SDCL 22-30A-3] without resulting financial loss.” Id. at 922. There is no requirement that the victim suffer a pecuniary loss to establish theft by deception. Id. This argument “focuses on the wrong part of the transaction. They direct attention to what the victim obtains. The gist of the offense, however, is concerned with what the defrauder obtains. Once the victim has parted with property in reliance on a false representation, it is immaterial whether [the exchange was" equal].” Id. (Citations omitted).

[¶ 23.] The record establishes that Quinn submitted a bill for $2527.80 to the county for the funeral of Leonesio, received $950 in return and then submitted a bill to the decedent’s wife for $3,879.80 without mention of the $950 paid to him by the county. Quinn was able to recover payments from Natalie Leonesio of $1,007.56 and $501.97, arguably in reliance in part on his billing statement.

[¶ 24.] Although this billing statement may create civil and possibly other criminal liability, the stipulated facts fail to prove beyond a reasonable doubt the count as charged, that Quinn did “create or reinforce a false impression as to law to obtain property of Natalie Leonesio in an amount over $500, with intent to defraud her thereof.” (Emphasis added). Given the fact that the indigent burial guidelines did not constitute a validly enacted law, there is nothing in the stipulated facts to support a finding that Quinn misled Natalie Leone-sio and created a false impression as to law.

[¶ 25.] The indictment must provide notice of the crime charged and the elements of the offense. State v. Hoeft, 1999 SD 24, ¶ 21, 594 N.W.2d 323, 327. While “an indictment is generally sufficient if it employs the language of the statute,” that is not the case here. Id. The prosecutor in this case focused exclusively on theft by deception perpetrated by misrepresenting the law. The State fails to cite to any law requiring the refund of the $950 to the county, or that said amount must be shown in the statement to the debtor. The count did not allege additional instances, based on either fact or statute, in which theft by deception could be proven. For example, if the State could prove Quinn received funds in excess of the $3,879.80 claimed, or, in excess of the reasonable value of his services, then he may have been subject to criminal or civil liability. Therefore, as this element of the crime charged (false impression as to law) is unsupported by the stipulated facts, the evidence is insufficient and we reverse Quinn’s conviction for theft by deception.

[¶ 26.] Reversed.

[¶ 27.] AMUNDSON and KONENKAMP, Justices, concur.

[¶ 28.] GILBERTSON, Justice, concurs .with a writing.

[¶ 29.] MILLER, Chief Justice, concurs specially.

GILBERTSON, Justice

(concurring).

[¶ 30.] The genesis of this case grows out of the providing of funeral services by Quinn. Unlike many other trades and services, this is now considered a profession subject to substantial licensing and regulation by the State of South Dakota. See generally SDCL chapter 36-19. Born of necessity in our frontier days, the profession has clearly evolved over the years to its current position in our society. In so doing, it has shed any claim of a right to caveat erwptor or doing what the market will bear.

[¶ 31.] SDCL 36-19-38 prohibits the following conduct by a person licensed to practice funeral service:

(4) [N]ot a person of good moral character;
(5) Shall be guilty of gross or willful malpractice in the business of funeral service or funeral directing;
(6) Shall be guilty of willful violation of any section of this chapter, or any rule or regulation of the board, or any rule or regulation of the state or any municipal board ... governing the disposition ... of dead human bodies....

SDCL 36-19-41 declares a violation of any provision of SDCL chapter 36-19 to be a class 2 misdemeanor.

[¶ 32.] Nevertheless, for reasons including the failure to legally enact “guidelines,” acts of prosecutorial discretion, stipulated facts precluding consideration of the most egregious acts, trial tactics and admissions by counsel, we do not sit in direct judgment on the actions of Quinn against an elderly widow and the taxpayers of Pennington County. Instead, we are limited to the very narrow issue addressed today by the Court. The opinion of the Court within these legal limits correctly decides that narrow issue.

[¶ 33.] However, this is hardly a vindication of the actions of Quinn. As noted by the Court today, in the future he may well be called to answer for his acts in civil, criminal or administrative tribunals. Today I can only look at the entire factual record, shake my head and sympathize with the writing of the Chief Justice.

MILLER, Chief Justice

(concurring specially).

[¶ 34.] Although I concur with the majority, I feel compelled to write specially to point out the despicable conduct of the Defendant and to emphasize the unfortunate tactical decisions by the prosecution.

[¶ 35.] Quinn was aware of Pennington County’s indigent burial guidelines. He indicated his agreement to follow them by accepting the $950 fee. Then, after receiving payment from the county, Quinn improperly proceeded to attempt to collect the full burial fee from the poor, elderly, indigent widow. The bill Quinn sent to her was especially misleading because it did not give credit for or even indicate that he had already received $950 from Pennington County!

[¶ 36.] The record of a pre-trial hearing, and the sentencing hearing, tell us some other damning evidence that I simply cannot ignore (although for some strange reason the prosecution failed or neglected to include it in the stipulation of facts). Incredibly, sometime after the burial, and even after Quinn received the county payment, he became aware of the fact that the widow had inadvertently found money from her deceased husband’s carpenter’s union, which she intended to use to reimburse the county for its payment of the funeral expenses. However, before she could do so, Quinn confronted her and told her that if the county discovered she had the money she would go to jail. He further told her that if she did not use the extra funds to pay him she would be “going to prison.” What a guy! Shame on you Mr. Quinn! What reputable person would use such misrepresentations to threaten an elderly, recently widowed, lady with prison? One can surely understand then, why this poor widow paid Quinn over $1,500 without knowing she had no obligation to do so. This reprehensible “business” practice, sounding like something out of a Dickens novel, is contemptible and outrageous and should be recognized as such.

[¶ 37.] Quinn used his business relationship with a grieving widow to compound an already difficult and painful situation. I suggest it was pure greed. His conduct in preying on the emotional situation of this poor woman, who had recently lost her husband to Alzheimer’s disease, compels me to write specially.

[¶ 38.] In addition to Quinn’s despicable conduct, I also write to note the prosecution’s unusual handling of the case. It is incomprehensible to me why the prosecutor failed to include the conduct described above in the stipulated facts as support for the theft by deception charge.

[¶ 39.] Then, at oral argument, State’s counsel made the unusual admission that the entire criminal case rested on the validity of the guidelines. I am not so willing to agree to that position, but such a concession is binding on the state.

[¶ 40.] What an unfortunate situation is presented to us. The county did not properly formalize its guidelines and prosecuto-rial authorities seemingly made significant errors of judgment. Thus, the law mandates that we may not affirm the conviction and the punishment Quinn so obviously deserves. However, we are a court of law and follow the law we must. It is most difficult when presented with this defendant’s obvious greed and his willingness to misrepresent the truth for his own personal financial gain.

APPENDIX 1

STATE OF SOUTH DAKOTA COUNTY OF PENNINGTON STATE OF SOUTH DAKOTA Plaintiff, vs. CARSON J. QUINN, Defendant.

IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT

Crim. Nos. 98-4227 and 99-1703

STIPULATION

The parties hereby enter into the following stipulation for the purpose of presenting this case to the Circuit Court for a determination of guilt or acquittal based on stipulated facts and to set forth their additional related agreements as follows:

1. The parties stipulate that the Circuit Court may enter a finding of guilt or acquittal as to Count 1 of the Indictment dated January 28, 1999 and Count 4 of the Indictment dated May 27, 1999 only based on the law and the stipulated facts set forth herein;

2. The parties stipulate to the following facts as related to said Counts:

A. Defendant received indigent burial assistance payment from Pennington County for said funerals in the amount of;
Leonesio funeral $950.00;
Horned Antelope funeral $950.00.
B. Defendant submitted bills for payment to Pennington County, copies of which are attached as Exhibits A and B;
C. Defendant submitted a funeral statement to Leonesio and Horned Antelope for monies in excess of the county burial payment and received monies over and above said amount which were not paid over to Pennington County, as shown by attached Exhibits C and D.
D. Defendant at the time of the events alleged in said Counts had received a copy of the Pennington County Burial Assistance Guidelines, attached Exhibit E;
E. The stipulation attached as Exhibit F regarding the Pennington County Indigent Burial Guidelines is true and correct and is incorporated herein as part of the factual showing before the Court;
F. At no time did Pennington County have a written contract with Campbell Paula Quinn Funeral Home.
3.In the event of a finding by the Court on an issue of law appealable as a matter of right by the State which would result in a judgment of acquittal, the State shall be afforded an opportunity to request a stay for the purposes of appeal prior to the entry of a judgment of acquittal;
4. Upon presentation of this signed Stipulation to the Court, Defendant agrees to pay to the State the sum of $21,610.61 as restitution which sum is paid without admission of guilt and which sum will not be refunded regardless of whether the case ultimately ends up as a conviction or acquittal;
5. That upon the presentation of this executed Stipulation to the Court, the State shall at the same time dismiss with prejudice all of the remaining Counts of the Indictments and agrees not to bring any similar or like charges against Defendant arising out of any indigent burial up to and including the date of Stipulation;
Dated this _9_ day of November, 1999.

STATE OF SOUTH DAKOTA

BY :/s/Timothy Barlett Timothy Barlett Asst. Attorney General

CARSON J. QUINN

BY:/s/Edward C. Carpenter Edward C. Carpenter and Ronald W. Banks Attorneys for Carson J. Quinn

      . We rely solely on the facts stipulated by the parties. "This court may not base its opinion upon statements of fact offered by the plain-' tiffs in their brief which were not contained within the stipulated facts.” Hart v. State Farm Mat. Auto. Ins. Co., 248 N.W.2d 881, 883 (S.D.1976); Beresford Ind. Sch. Dist. v. Toomey, 65 S.D. 328, 273 N.W. 724 (1937). The stipulation is attached as Appendix 1 to this opinion for the convenience of the reader. The State’s brief urges and relies upon numerous detailed facts outside the record, and, in response, Quinn urges that all such statements be stricken or ignored by this Court.
      Despite the State’s argument, we are bound by these stipulated facts as the stipulation provides:
      1. The parties stipulate that the Circuit Court may enter a finding of guilt or acquittal ... only based on the law and the stipulated facts set forth herein.
      (Emphasis added). Therefore, we are bound by the stipulation signed by the parties.

      . The disparity between the bill originally submitted to the county and the bill to Natalie Leonesio is apparently based on the inclusion of the indicated additional services.

      . In the Matter of Discipline of Rensch, 333 N.W.2d 713, 716, we held that attorney Rensch "thwarted the statutes designed to insure that assets of defendants represented by court appointed counsel are available to reimburse the counties for the expense of such representation.” As a result, Mr. Rensch was publicly censured by this Court. However, that decision was based on the Code of Professional Ethics. We have not been directed to, nor are we able to find, any authority that makes the conduct of Quinn, based on the stipulated facts, a violation of the laws of South Dakota.


author: GILBERTSON, Justice.

text:
    2001 SD 23
    Lyle WIEDMANN, Claimant and Appellant, v. MERILLAT INDUSTRIES, Employer/Self-Insurer and Appellee.
    No. 21477.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 8, 2001.
    Decided Feb. 28, 2001.

      Margo Tschetter Julius of Groves, Julius & Simpson, Rapid City, SD, Attorneys for claimant and appellant.
    Curtis S. Jensen and Frank Driscoll of DeMersseman Jensen, Rapid City, SD, Attorneys for employer/self-insurer and ap-pellee.
   GILBERTSON, Justice.

[¶ 1.] Lyle Wiedmann (Wiedmann) injured his back while working for Merillat Industries (Merillat). Wiedmann’s petition for odd-lot benefits was denied. The circuit court affirmed the Department of Labor’s denial because Wiedmann had refused to participate in a pain management program. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Wiedmann began working for Merillat in June of 1987. He injured his back while working on March 21,1994, and reported the injury to his supervisor. For the first month after the injury, Wiedmann continued to work his usual twelve-hour shifts, despite continued complaints of pain. At this time, Wiedmann was receiving treatment from Dr. Burns, a chiropractor. Subsequently, on the advice of Dr. Burns, beginning in April of 1994, Wied-mann did not work for approximately one year. Dr. Burns also referred Wiedmann to a neurologist, Dr. Sabow. After an MRI was performed, it was discovered that Wiedmann had a slightly bulged disc. Dr. Sabow recommended treatment, rather than surgery, for his injury. Because Wiedmann insisted that he needed surgery, Dr. Sabow referred him to Dr. Teu-ber, a neurosurgeon. Dr. Teuber agreed with Dr. Sabow that surgery was not an option.

[¶ 3.] In an attempt to return Wied-mann to work, in February of 1995 Meril-lat requested Dr. Sabow to review possible job descriptions for Wiedmann. Wied-mann eventually returned to Merillat in a position with the quality control department, working a four-hour shift. This arrangement continued until May of 1995 when Dr. Sabow again took Wiedmann off work because of continued complaints of back pain. Wiedmann then sought treatment with Dr. Tschida and Dr. Goff. Neither doctor could identify the source of Wiedmann’s pain. Dr. Sabow then referred Wiedmann to another neurosurgeon, Dr. Seljeskog. On October 17, 1995, Dr. Seljeskog performed a microdiscecto-my to relieve the pressure on a nerve root caused by a small disk rupture. This procedure reduced Wiedmann’s pain, and he returned to work on March 1,1996.

[¶ 4.] Before he returned to work, Mer-illat prepared four written job descriptions, with accompanying video of employees performing the actual job. These four positions were approved by Dr. Sabow as within the restrictions recommended by Dr. Seljeskog. After one week of full time work, Wiedmann returned to Dr. Sabow, complaining of back pain. Dr. Sabow recommended a “work hardening” program, where Wiedmann would start working four hours per day, gradually increasing the hours until he worked a full shift. Wied-mann was unable to fulfill this schedule, as he could only work six hours a day before leaving due to back pain.

[¶ 5.] On May 20, 1996, Wiedmann again saw Dr. Sabow. Dr. Sabow was unable to determine why Wiedmann could not follow the work hardening schedule, and he could offer no further treatment to alleviate Wiedmann’s pain. At this point, Dr. Sabow recommended that Wiedmann attend a pain management program. Merillat did not authorize that program because Wiedmann had been making progress towards working longer hours. Eventually, Merillat and Wiedmann agreed on a set schedule of six and a half-hour shifts. Wiedmann followed this schedule for three months, even asking his manager if more shifts were available. In December of 1996, a new “work hardening” schedule was prepared which would gradually increase the number of hours worked until Wiedmann was able to work a standard twelve-hour shift. While initially receptive to this schedule, Wiedmann actually decreased the number of hours he had been working after this schedule went into effect.

[¶ 6.] Wiedmann was evaluated by a psychologist, Dr. Ertz, on August 16, 1996 and February 19, 1997. During these evaluations, Dr. Ertz administered the MMPI 2 test, which suggested “a relatively significant level of depression.” Dr. Ertz also determined that the level of Wi-edmann’s depression was directly linked to the amount of pain he was suffering, which in turn, was linked to the number of hours he worked. In addition, Dr. Ertz concluded that Wiedmann had a tendency to be compliant and to hide or minimize expressions of pain. According to Dr. Ertz, these tendencies drove Wiedmann to work more hours, which consequently caused more depression. Wiedmann was cautioned by Dr. Ertz to only work within his pain tolerances.

[¶ 7.] On January 28, 1997, Wiedmann again visited Dr. Seljeskog, complaining of back pain. After another MRI was performed, Dr. Seljeskog could not find the source of Wiedmann’s pain. Merillat then scheduled Wiedmann for a pain management program. This program included an evaluation by a psychologist, and was designed to teach patients to deal with the pain they were feeling. Dr. Ertz had concerns that the pain management program would conflict with Wiedmann’s personality style and cause him further depression. After consulting with his attorney and Dr. Ertz, Wiedmann decided not to attend the evaluation.

[¶ 8.] While still working for Merillat, Wiedmann petitioned the Department of Labor (DOL) for an award of permanent total disability benefits under the odd-lot doctrine. After a hearing on April 10-11, 1997, the DOL concluded that Wiedmann’s claims of debilitating pain were not credible. In spite of this lack of credibility, the DOL awarded benefits because Merillat had not presented any expert testimony to refute Wiedmann’s claim that he was too depressed to work full-time. On appeal to the circuit court, the award was reversed and remanded with directions to enter findings of fact and conclusions of law on whether Wiedmann’s pain prevented him from working and whether his refusal to attend the pain management program precluded an award of benefits.

[¶ 9.] On remand, the DOL again found that Wiedmann lacked credibility. It further rejected the opinions of Wiedmann’s experts because they were based on Wiedmann’s noncredible complaints of pain. Finally, the DOL found that Wiedmann could not establish he was permanently disabled due to debilitating pain while refusing to participate in a pain management program. For those reasons, it denied benefits. That decision was affirmed by the circuit court on the sole ground that Wiedmann’s refusal to participate in the program was sufficient to deny benefits. Wiedmann appealed to this Court raising the following issues for our consideration:

1. Whether the DOL was clearly erroneous in finding Wiedmann not credible.
2. Whether the DOL was clearly erroneous in rejecting the opinions of Wiedmann’s experts.
3. Whether Wiedmann’s failure to participate in a pain management program precludes the recovery of benefits.

STANDARD OF REVIEW

[¶ 10.] Pursuant to SDCL 1-26-36, our standard of review requires us to give great deference to the DOL on factual questions. Johnson, 2000 SD 47, ¶ 19, 610 N.W.2d at 453 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶6, 575 N.W.2d 225, 228) (additional citations omitted). Determinations of lay and expert witness credibility are factual questions reviewed under the clearly erroneous standard of review. Id. ¶ 36, 610 N.W.2d at 457. See also Goebel v. Warner Transp., 2000 SD 79, ¶ 39, 612 N.W.2d 18, 28. Under the clearly erroneous standard, we will reverse only “if after a review of the entire record we are definitely and firmly convinced a mistake has been committed.... ” Johnson, 2000 SD 47, ¶ 19, 610 N.W.2d at 453. The DOL’s conclusions of law are reviewed de novo. Id.

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the DOL was clearly erroneous in finding Wied-mann not credible.

[¶ 12.] The DOL specifically rejected the testimony of Wiedmann as not credible. It found that while Wiedmann may experience some pain, he had demonstrated the ability to work despite that pain. Therefore, he had failed to establish a prima facie case for odd-lot benefits because his pain was not “severe and debilitating.” See Baker v. Dakota Min. & Const., 529 N.W.2d 583, 585 (S.D.1995). Wiedmann claims this finding was clearly erroneous. We disagree.

[¶ 13.] There is no question that Wiedmann suffered from back pain. There is also no dispute that he has suffered from depression as a result of that pain. However, to establish benefits under the odd-lot doctrine, Wiedmann must establish that he is in “severe and debilitating pain.” It is that claim which the DOL found to lack credibility. Wied-mann’s treating physicians released him to work and testified that a return to work was safe and would not risk re-injury. Dr. Sabow testified that one of the best ways to treat chronic pain is to work, keep busy. Dr. Sabow further testified that Wied-mann’s pain response was “disproportionate” to the neurological evidence, and that Wiedmann demonstrated “a hypochondriac attitude.”

[¶ 14.] The DOL heard evidence that Wiedmann was able to maintain steady employment, albeit at reduced hours. His supervisor testified that he never noticed any signs of pain while Wiedmann was at work. An ergonomic consultant hired by Merillat observed that Wiedmann displayed no overt pain behaviors while working. Wiedmann was also observed by an occupational rehabilitation specialist to insure that the job was within the safety limits prescribed by Wiedmann’s various physicians so as to not cause further injury. The DOL also viewed a video of Wied-mann on the job, where he was moving freely, easily and comfortably. By his own behavior, Wiedmann showed that he was able to work six and a half-hour shifts and had requested additional shifts. Additionally, Wiedmann offered no testimony corroborating his claims of debilitating pain.

[¶ 15.] It is well settled that “[d]ue regard shall be given to the opportunity of the agency to judge the credibility of the witness.” Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 17, 613 N.W.2d 531, 536. Wiedmann appeared before the DOL on two occasions. Both times, it determined that his claims of debilitating pain were not credible. After reviewing the record, the DOL’s findings of fact were not clearly erroneous.

[¶ 16.] 2. Whether the DOL was clearly erroneous in rejecting the opinions of Wiedmann’s experts.

[¶ 17.] The DOL rejected the expert testimony of Drs. Ertz and Meiners because their opinions were based on Wi-edmann’s subjective complaints of pain, which had previously been rejected as lacking credibility. We have often stated that “[t]he trier of fact is free to accept all of, part of, or none of, an expert’s opinion.” Johnson, 2000 SD 47, ¶ 26, 610 N.W.2d at 455 (citing Kester v. Colonial Manor of Custer, 1997 SD 127, ¶24, 571 N.W.2d 376, 380). In addition, “[t]he value of the opinion of an expert witness is no better than the facts upon which it is based. It cannot rise above its foundation and proves nothing if its factual basis is not true.” Id. ¶ 25. Despite these broad powers vested in the finder of fact, Wiedmann claims that the DOL’s decision “arbitrarily rejeet[ed]” the “uncontroverted” opinions of Drs. Ertz and Meiners, and was therefore clearly erroneous.

[¶ 18.] As was pointed out above, there is no question that Wiedmann suffered from back pain and depression. The question for the DOL was whether these symptoms rose to the level of severe and debilitating pain that precluded Wiedmann from full-time employment. Drs. Ertz and Meiners each testified that in their opinion, Wiedmann could not work full-time because of his pain and depression. Contrary to Wiedmann’s claim, these opinions were not “uncontroverted.” The physicians that examined Wiedmann testified that his pain complaints were excessive when compared to his injury. In addition, Dr. Sabow testified that “[Wiedmann] has some disability, but he’s not totally disabled so he can’t perform in the competitive job market.” Furthermore, both Dr. Sabow and Dr. Seljeskog testified that Wi-edmann could return to his job. Dr. Sa-bow could not understand why Wiedmann could not follow the various “work hardening” programs as established. Finally, the expert opinions of Drs. Ertz and Meiners were refuted by Wiedmann’s conduct of repeatedly returning to work. Clearly, the opinions of Drs. Ertz and Meiners were not uncontroverted. Therefore, the DOL was free to accept “all of, part of, or none of’ their opinions. See id. ¶ 26.

[¶ 19.] The opinions ■ offered by Drs. Ertz and Meiners were based largely on Wiedmann’s subjective complaints. These complaints were found to be not credible. It should also be noted that neither expert observed Wiedmann at work. Finally, after receiving treatment from Dr. Ertz, Wiedmann began reducing the number of hours he worked, in spite of the “work hardening” schedule that had recently been established to increase the number of hours worked. Therefore, the DOL was not clearly erroneous in finding the opinions of Drs. Ertz and Meiners lack foundation and prove nothing. See id. ¶ 25.

[¶ 20.] 3. Whether Wiedmann’s failure to participate in a pain management program precludes the recovery of benefits.

[¶ 21.] The DOL determined that Wi-edmann could not “claim to be totally disabled due to severe and debilitating pain and refuse to participate in the only medical program designed to address his condition.” The circuit court affirmed the DOL’s decision on this basis alone. Wied-mann argues that based on his experts’ opinions, he had the right to refuse to participate in the program. We do not agree.

[¶ 22.] In Schlenker v. Boyd’s Drug Mart, 458 N.W.2d 368, 371 (S.D.1990), we stated that if a claimant unreasonably refuses to participate in a pain management program, he or she has failed to prove total disability. Thus, “[t]he question of whether refusal of treatment should be a bar to compensation turns on a determination of whether the refusal is reasonable.” Id. (citing 1 Larson’s Workmen’s Compensation Law § 13.22(b)). Our inquiry into the reasonableness of Wi-edmann’s refusal requires us to weigh “the probability of the treatment’s successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant.” Id.

[¶ 23.] In Schlenker, we determined that the claimant’s refusal of treatment was reasonable. In that case, only vocational rehabilitation specialists retained by the employer/insurer recommended the treatment. Id. at 372. The treatment required the claimant to be away from her family for a four-week period. In addition, her treating physician told the claimant that the program would not be productive for her because these programs are more suitable for patients “with a high level of anxiety and the functional problems” rather than the pain problems that she suffered. Id. at 370 n3.

[¶ 24.] In this present situation, the treatment program was held near Wied-mann’s home. The treatment program was recommended by Drs. Sabow, Seljes-kog, Tschida and Goff, all doctors that had personally treated Wiedmann. The program was designed to teach patients to manage chronic pain and reduce anxiety caused by the pain. This is the type of program recommended by his physicians, including Dr. Ertz who, after his initial consultation with Wiedmann, recommended he would benefit from therapy “to help him reevaluate stress issues and develop alternative coping skills.” Dr. Ertz was not familiar with the treatment program for which Wiedmann was signed up, but testified that it was speculative whether the treatment would improve Wied-mann’s ability to cope with his pain.

[¶ 25.] This expert opinion was rejected by the DOL because it was based on Wiedmann’s noncredible claims of pain. In spite of all the recommendations from treating doctors, after consulting with his attorney and Dr. Ertz, Wied-mann refused the treatment program. Because Wiedmann depended on expert opinion that had no factual foundation, his refusal to participate in the program was unreasonable. Wiedmann’s reliance on advice of counsel is likewise unreasonable. Therefore, under Schlenker, he has failed to establish a prima facie case for odd-lot benefits. A claimant cannot claim to be permanently and totally disabled because of debilitating pain and then refuse to participate in the only medical program designed to address his condition.

[¶ 26.] Judgment is affirmed.

[¶ 27.] MILLER, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . This condition is commonly seen in the general population without causing pain.

      . The following quote from Johnson v. Albert-son's, 2000 SD 47, ¶ 14 n.6, 610 N.W.2d 449, 452 n.6, explains the MMPI test:
      MMPI stands for Minnesota Multi Phasic Personality Inventory. The test is a standard objective psychological battery consisting of 550-566 true-false questions concerning behavior, feelings, social attitudes, and frank symptoms of psychopathology. To each question, the subject must answer true, false or cannot say. The subject's answer sheet is then scored by various keys that have been standardized on different diagnostic groups and personality types. Sloane Dorland Annotated Medical-Legal Dictionary 717 (1987); Psychiatric Dictionary 640 (5th ed.1981).

      .Wiedmann was evaluated by Dr. Lynn Meiners on August 27, 1996. She also concluded that Wiedmann's depression increased in proportion to the number of hours he worked.

      . In mid-March, 1997, after being treated by Dr. Ertz, Wiedmann began leaving work after only four hours.

      . Wiedmann eventually quit working for Mer-illat in February of 1998.

      . There was no way to evaluate the effectiveness of the program because Wiedmann refused to attend.


author: MILLER, Chief Justice. SABERS, Justice AMUNDSON, Justice

text:
    2001 SD 27
    STATE of South Dakota, Plaintiff and Appellee, v. Michael A. FENDER, Defendant and Appellant.
    No. 21339.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided March 7, 2001.

      Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Gary G. Colbath, Jr. of Banks, Johnson, Colbath, & Kerr, Rapid City, SD, Attorneys for defendant and appellant.
   MILLER, Chief Justice.

[¶ 1.] In this appeal, we affirm Michael Fender’s grand theft conviction, and hold that the evidence was sufficient to sustain the jury verdict, the State did not improperly withhold evidence and the giving of a flight instruction was not prejudicial error.

FACTS

[¶ 2.] On Monday, March 8, 1999, Fender was a manager of the Mount Rushmore Road Taco Bell in Rapid City, South Dakota. He testified that he arrived to open the store at 7:55 a.m. and began his morning routine of paperwork and readying the store for business. Part of the process involves accessing the safe to get money for the day’s operations. The safe, which consists of an inner and outer door, must be accessed by a precise procedure involving a ten-minute wait between the opening of the outer door and the opening of the inner door.

[¶ 3.] Fender later told law enforcement officers that he accessed the safe about 8:40 a.m. and found that the money deposits from the weekend were missing. He called Mary Parker, the manager who closed the night before, to inquire about the missing money. She had no knowledge and told him to call the security company. Before calling the security company, Fender called his district manager, Pam Hare, who was at a conference in Nashville, Tennessee. She also told Fender to call the security company, because they would know whose code was last used to enter and exit the building. Fender seemed surprised when he learned of these security precautions. Fender called the security company and then called the police. The police arrived and began investigating. Lisa Treadwell, the owner’s wife, and Parker also arrived to assist in the investigation.

[¶ 4.] The security company records indicate that Fender’s individual security code was used that morning to enter the store at 7:09 a.m. and to exit it at 7:22 a.m. Although this information was obtained the morning of the theft, Fender denied any involvement, continued working at that Taco Bell as a manager and was not initially the focus of the detective’s investigation. He even received a salary increase after the theft.

[¶ 5.] In April of 1999, the detective contacted Andrea Wessel, a former friend of Fender’s, who was on work release from the Pennington County Jail, to gain information about Fender. She had a conversation with Fender in which he told her he was planning to leave for North Carolina with his mother. He swore her to secrecy and indicated he was nervous because he believed the police were after him. She tape recorded the conversation and turned it over to the detective. Based on the tape, the detective obtained an arrest warrant for Fender. He was arrested in Custer, South Dakota while loading furniture to move to North Carolina.

[¶ 6.] The case was tried to a jury which returned a verdict finding Fender guilty of grand theft. He received a five year sentence with three years suspended on the condition he make restitution in the amount of $5,709.94.

DECISION

[¶ 7.] 1. The evidence supports the jury’s verdict.

[¶ 8.] When reviewing a challenge to the sufficiency of the evidence, the question this Court examines is “ ‘whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt....’” State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421 (citations omitted). In this process, “ ‘we accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the [jury’s] verdict.’ ” Id. To convict a defendant upon circumstantial evidence alone, the prosecution must show “ ‘such facts and circumstances as are consistent with each other and with [the] guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent.’ ” State v. Esslinger, 357 N.W.2d 525, 530 (S.D.1984) (citations omitted). However, the evidence need not exclude all possible hypotheses of innocence, only reasonable hypotheses of innocence. State v. Robb, 303 N.W.2d 368, 371 (S.D.1981).

[¶ 9.] The jury heard evidence indicating that Fender’s individual security access code had been used to enter and leave the building early in the morning the day of the theft. They also heard evidence that although Fender alleged two others knew his access code, those individuals were not in town at the apparent time of the theft. Furthermore, the jury heard evidence of Fender’s strange behavior the morning of the incident and of his plan to leave town without notifying his employer. Sufficient evidence exists to support the jury’s verdict.

[¶ 10.] 2. Fender did not suffer a violation of due process.

[¶ 11.] The prosecution never disclosed the tape recorded statements Fender made to Wessel and the prosecutor never disclosed the alleged taped conversations Fender had on Taco Bell work phones. Fender argues that the prosecutor’s failure to disclose these tape-recorded statements constitutes a violation of his due process rights. He correctly points out that the Brady rule applies to situations where the prosecution suppresses exculpatory evidence to the detriment of the defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). We have noted on numerous occasions that the Brady rule only applies to situations where the defendant discovers after trial that the prosecutor had material evidence that was not disclosed during the trial. State v. Knecht, 1997 SD 53, ¶ 18, 563 N.W.2d 413, 420 (citing State v. Fox, 313 N.W.2d 38, 40 (S.D.1981); State v. Moves Camp, 286 N.W.2d 333, 339 (S.D.1979); State v. Sahlie, 277 N.W.2d 591, 596 (S.D.1979)).

[¶ 12.] Fender does not contend he learned of the alleged suppressed evidence after trial. In fact, he notes that he became aware of his tape-recorded statements during the trial. Accordingly, we need not reach the four-part test for determining if a due process violation occurred. See id. ¶¶ 17-18; Ashker v. Solem, 457 N.W.2d 473, 477-78 (S.D.1990).

[¶ IS.] SDCL 23A-13-15 specifically addresses the situation Fender describes. It provides:

ly prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

SDCL 23A-13-15 (emphasis added). This statute initially obligated the State’s Attorney to disclose the previously requested discovery materials. Additionally, during the trial, it obligated Fender to notify the trial court when he became aware of his tape-recorded statements, which had not been previously disclosed. The trial court then could have taken action pursuant to SDCL 23A-13-17, which provides:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

Since Fender did not take the appropriate action at the trial level, he did not preserve it for our consideration.

[¶ 14.] 3. Giving of flight instruction was not reversible error.

[¶ 15.] Fender contends that the trial court erred in giving a flight instruction in his case. We have warned trial courts that the flight instruction “should be used sparingly and only when the special circumstances and evidence require.” State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). A challenging party, however, must show prejudicial error to win a reversal on appeal. State v. Fast Horse, 490 N.W.2d 496, 500 (S.D.1992) (citation omitted). “The inquiry in this regard is whether, absent the alleged error, it is clear beyond a reasonable doubt the jury would have returned a guilty verdict.” Id.

[¶ 16.] The evidence disclosed that Fender told Wessel that he was worried the police were coming after him for the theft, that he would be moving to North Carolina soon and that she should not tell anyone he was leaving. Additionally, the detective testified to the conversation he had with Fender while transporting him to jail after his arrest. Fender admitted to the detective that he was leaving town for North Carolina and had not planned to inform his employer.

[¶ 17.] Based on this evidence, the giving of the flight instruction was not error.

[¶ 18.] Affirmed.

[¶ 19.] KONENKAMP and GILBERTSON, Justices, concur.

[¶ 20.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 21.] I agree with Justice Amund-son’s dissent that the jury was improperly instructed on flight. I write separately to reiterate that such instructions should be cautiously applied. A sparing approach to such an instruction is required. State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). It is troubling that despite our cautionary warning these instructions have been readily made available to the jury. See State v. Frazier, 2001 SD 19, ¶¶ 59-61, 622 N.W.2d 246 (Sabers, J., dissenting).

[¶ 22.] An instruction on flight is always collateral to the primary issue of whether a crime was committed by this defendant and therefore is “only marginally probative as to the ultimate issue of guilt or innocence.” United States v. Myers, 550 F.2d 1036, 1050 (5th Cir.1977). Such an instruction highlights to the jury collateral evidence as “consciousness of guilt” and diminishes the burden of demonstrating “guilt beyond a reasonable doubt” and throws out the “presumption of innocence.” As stated in Frazier, “we have recently unanimously reversed under somewhat similar downplaying of these two key instructions.” Frazier, 2001 SD 19, ¶ 60, 622 N.W.2d 246 (Sabers, J., dissenting) (citing State v. Nelson, 1998 SD 124, ¶ 20, 587 N.W.2d 439, 447). We should also reverse where, as here, the presumption of innocence instruction is diluted by other instructions. Under the evidence adduced at trial, it was error to instruct the jury that they could infer from Fender’s actions he committed the crime charged.

[¶ 23.] Therefore, I respectfully dissent and would reverse and remand for a new trial.

AMUNDSON, Justice

(dissenting).

[¶ 24.] In three prior decisions, this Court has addressed the issue of flight instructions. In State v. Fast Horse, 490 N.W.2d 496 (S.D.1992), State v. Waller, 338 N.W.2d 288 (S.D.1983) and State v. Hoover, 89 S.D. 608, 236 N.W.2d 635 (1975), the following instruction was given:

Flight by the defendant, after the crime has been committed, does not create a presumption of guilt. You may consider evidence of flight, if any, however, as tending to prove the defendant’s consciousness of guilt. You are not required to do so. You should consider and weigh evidence of flight by the defendant in connection with all the other evidence in the case and give it weight as in your judgment it is fairly entitled to receive.

In each of these appeals, this Court affirmed the defendant’s conviction. In doing so, however, this Court found error by the trial court in giving such instruction. Nevertheless, we found that error to be harmless or non-prejudicial, resulting in an affirmance.

[¶ 25.] Each time we have analyzed the appropriateness of the giving of this flight instruction, we began with the following mantra: “we might well be in accord with the Colorado Supreme Court in Robbins v. People, 1960, 142 Colo. 254, 350 P.2d 818, where it held that a flight instruction ⅛ rarely advisable and should never be given unless the peculiar facts of the case appear to make it essential’.... ” See Fast Horse, 490 N.W.2d at 501; Waller, 338 N.W.2d at 291; Hoover, 236 N.W.2d at 640-41. This Court has also stated that the giving of such instruction should be “used sparingly and only when the special circumstances and evidence require.” Fast Horse, 490 N.W.2d at 502. Words like “essential,” “rarely advisable,” “sparingly” and “special circumstances” quickly rise to the surface. Are the words contained in these statements: statements of law or mere platitudes? If they are the former, we should abide by what we say and mandate trial courts to heed our warning. If they are the latter, we should abandon such hollow legal cliches and allow courts to use the instruction anytime a criminal defendant leaves the scene of the crime. I submit that the former is the better course to follow.

[¶ 26.] In the case at hand, one undisputed fact is clear: Fender did not leave the jurisdiction. A court should not instruct on “flight” without having actual flight. The Court of Appeals for the Eighth Circuit has stated that “the inference of guilt that may be drawn by the fact of flight only arises ‘immediately after the commission of a crime, or after [a defendant] is accused of a crime that has been committed.’ ” United States v. White, 488 F.2d 660, 662 (8th Cir.1973). “The requirement of immediacy of flight is greatly diminished, however, when the defendant knows that he is accused of or sought for the crime charged.” Waller, 338 N.W.2d at 292 (citing United States v. Hernandez-Miranda, 601 F.2d 1104 (9th Cir.1979); United States v. Jackson, 572 F.2d 636 (7th Cir.1978)). At the time of the alleged “flight,” Fender was neither accused of a crime nor out on bond.

[¶ 27.] Despite prior precedent, the majority submits that hearsay statements made by Fender to the arresting officer were the basis for the flight instruction. Evidence of flight is properly admitted only if the government can prove with direct evidence that the defendant knows he is being sought for the crime charged. See United States v. Myers, 550 F.2d 1036 (5th Cir.1977). Even if the majority could circumscribe the rules of evidence to analyze such statement, an intent to flee is not enough. See Fast Horse, supra (actually fled to California), Waller, supra (actually fled to Minnesota); Hoover, supra (actually fled to Missouri). Likewise, a plain reading of the instruction itself implies that the defendant had, in fact, left the jurisdiction. The language of the instruction relies on the “flight” of the defendant to have already transpired. As such, a flight instruction was unwarranted.

[¶ 28.] It is important to note that a flight instruction, most generally, will be incidental to the main charging instructions of the offense. Therefore, it will, except in the rarest of cases, never be considered harmless or non-prejudicial. However, “it is widely acknowledged that evidence of flight or related conduct is ‘only marginally probative as to the ultimate issue of guilt or innocence.’ ” Myers, 550 F.2d at 1049. How long are we going to continue to advise trial courts to give a flight instruction in limited circumstances, and then turn our head and affirm? Now is the time to step to the plate.

[¶ 29.] I respectfully dissent.

      . The flight instruction stated:
      Flight by the defendant, after the events charged in the Information occurred, does not create a presumption of guilt. You may consider evidence of flight, however, as tending to prove the defendant’s consciousness of guilt. You are not required to do so. You should consider and weigh evidence of flight by the defendant in connection with all the other evidence ih the case and give it such weight as in your judgment it is fairly entitled to receive.

      . The record reflects that even the trial court acknowledged the facts of this case are not of the traditional sort of “flight” that would warrant the giving of this flight instruction:

      THE COURT: [M]ost often the nature of the flight instruction is used in a little different circumstance than this; i.e., the guy gets out of his car when the highway patrolman stops and takes off across the field, that sort of thing.
      The facts and circumstances here indicate this was a slower process, that from the time of the event defendant continued his employment, and as things slowly evolved both parties' positions changed ... his employment and those sorts of things. From and after the time of the arrest, I think is where one needs to also measure, plus his actions as you allege from the time of the event, that he was here and continued his employment, those sorts of things, and the jury needs to weigh it.

      . There is nothing in the record that could describe Fender's conduct as constituting flight. Likewise, the statement that he may in the future move outside the jurisdiction does not rise to the level of flight. Rightfully so, the jury was not instructed that the possibility of Fender leaving the jurisdiction amounted to flight. However, the flight instruction actually given was improperly before the jury for its consideration.