author: SRSTKA, Circuit Judge.

text:
    2003 SD 69
    Kay SOPKO, Individually and as personal representative of the Estate of Jeffrey Sopko, Deceased, and Joshua Sopko, Claimants and Appellees, v. C & R TRANSFER COMPANY, INC., Employer and Appellant, and Home Insurance Company, Insurer and Appellant.
    No. 22408.
    Supreme Court of South Dakota.
    Argued Nov. 19, 2002.
    Decided June 11, 2003.
    See also, 575 N.W.2d 225, 1998 SD 8.

      N. Dean Nasser, Jr. of Nasser Law Offices, Sioux Falls, South Dakota, Attorneys for claimant and appellee.
    Rick W. Orr and Eric C. Schulte of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellants.
   SRSTKA, Circuit Judge.

[¶ 1.] C & R Transfer Co., Inc. (C & R) appeals the circuit court’s determination that workers’ compensation benefits are determined at the rate available when a change in the claimant’s circumstances occur and that beneficiaries of death benefits are set at the time of death, not the time of injury. We reverse.

FACTS AND PROCEDURE

[¶ 2.] This is the second appeal of this case. The first decision is reported at Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225 (Sopko I).

[¶ 3.] In 1974 Jerry Sopko was injured by an exploding truck tire rim. C & R was his employer and was responsible for workers’ compensation benefits. After an initial six-month recovery period Sopko’s condition improved and he began working again; however, he suffered symptoms of the injury the remainder of his life.

[¶ 4.] Although his condition varied, by 1981 Sopko’s condition stabilized to the point where he signed a settlement agreement that terminated his workers’ compensation benefits. After signing this agreement, Sopko’s condition changed again. As a result, Sopko sought new workers’ compensation benefits from the 1974 accident despite the 1981 settlement agreement terminating benefits. Department of Labor (Department) denied his request and that issue ultimately reached this Court in Sopko I. On appeal, we held the legislature intended to disallow agreements foreclosing a statutory right to reopen a claim in the event of latent and unforeseen consequences from the initial injury. Sopko I, 1998 SD 8, ¶¶ 10-11, 575 N.W.2d at 280. We determined Sopko’s injury in 1974 was always compensable and Department had jurisdiction to revisit Sopko’s benefits when his circumstances changed, despite the fact he signed the settlement agreement in 1981. Sopko I, 1998 SD 8, ¶ 19, 575 N.W.2d at 227-228.

[¶ 5.] In June 1995, nearly a quarter-century after his work-related injury, Sop-ko died. Based on our holding in Sopko I, Sopko’s estate sought to reopen his claim for workers’ compensation seeking benefits for complications Sopko experienced subsequent to his 1974 injury. Department determined Sopko was only entitled to the extent of workers’ compensation benefits available in 1974. Furthermore, Department concluded that South Dakota’s death benefit statutes establish beneficiaries at the time of injury. This finding was significant as Sopko had not yet married his wife or conceived his child until after his 1974 'injury. Therefore, relying on this rationale, Department determined Sopko’s beneficiaries were not entitled to death benefits.

[¶ 6.] The circuit court reversed Department on both issues. In so doing, it held that workers’ compensation benefits must be determined according to the benefits available on the date when the new extent of the injury becomes apparent and also held that beneficiaries under the workers’ compensation scheme are classified at the time of death, not at the time of injury. The circuit court then determined Sopko’s latent condition was fully detected on July 1, 1993, allowing Sopko’s estate to receive benefits at the new statutory rate effective July 1, 1993. C & R appeals this decision.

ISSUES

Did the circuit court err in holding that South Dakota’s workers’ compensation scheme under SDCL 62-7-33 allows statutory benefits to be determined at the rate available when a change in circumstances occurs, not confined to the rate existing at the time of injury.

Did the circuit court err in holding that the beneficiaries of death benefits under South Dakota’s workers’ compensation scheme are determined at the time of death, not at the time of injury.

STANDARD OF REVIEW

[¶ 7.] The standard of review for an appeal of a workers’ compensation decision is set forth in Sopko I:

[0]ur standard of review, delineated in SDCL 1-26 requires us to give great weight to the findings and inferences made by the Department on factual questions. We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course are fully renewable.

Sopko I, 1998 SD 8, ¶ 6, 575 N.W.2d at 228 (internal citations omitted).

DECISION

ISSUE ONE

[¶ 8.] Did the circuit court err in holding that South Dakota’s workers’ compensation scheme under SDCL 62-7-33 allows statutory benefits to be determined at the rate available when a change in circumstances occurs, not confined to the rate existing at the time of injury?

[¶ 9.] The circuit court erred when it held that South Dakota’s workers’ compensations scheme and specifically SDCL 62-7-33 allows statutory benefits to be determined at the rate available when a change in circumstances occurs, not confined to the rate existing at the time of injury. The circuit court’s determination that Sopko is entitled to the rate of compensation as it existed in 1993 is not supported by case law or statutory authority.

[¶ 10.] We have previously held that, “proceedings under the Workers’ Compensation Law ... are purely statutory, and the rights of the parties and the manner of procedure under the law must be determined by its provisions.” Caldwell v. John Morrell & Co., 489 N.W.2d 353, 364 (S.D.1992). Furthermore, “when the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.” Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470.

[¶ 11.] In addressing the first issue raised by appellant, our analysis turns on the intended purpose of SDCL 62-7-33. This statute provides:

Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the department of labor pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition or the employee warrants such action. Any case in which there has been a determination of permanent total disability may be reviewed by the department not less than every five years.

The nucleus of this statute has remained constant since its inception and only contemplates movements as to the degree of a workers’ partial disability. South Dakota has long observed that “rights and obligations of an interested party under workers’ compensation law become vested at the date of a compensable accident, unless death results.” Homestake Mining v. South Dakota Subsequent Injury Fund, 2002 SD 46, ¶ 21, 644 N.W.2d 612, 617 (quoting Salmon v. Denhart Elevators, 72 S.D. 110, 30 N.W.2d 644, 648 (1948)). In addition, we have recognized that “until such time as an accident occurs the legislature may change the scale of weekly or other benefits, but to make such a change after the accident occurs would impair the obligations of contracts.” Id. Therefore, according to our prior case law and the relevant statutory authority, Department may review any payment of benefits pursuant to SDCL 62-7-33, however, the rate for calculating benefits that is utilized vests at the time of injury.

[¶ 12.] This is not a new or novel proposition. We have consistently held that the law in effect at the time the employee is injured is what controls the rights and duties of the parties in workers’ compensation cases. South Dakota Subsequent Injury Fund v. Heritage Mutual Ins. Co., 2002 SD 34, ¶ 15, 641 N.W.2d 656, 659; see also Homestake Mining Co., 2002 SD 46, ¶ 21, 644 N.W.2d 612 at 617; Faircloth v. Raven Indus., Inc., 2000 SD 158, ¶ 5, 620 N.W.2d 198, 200; Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 19, 617 N.W.2d 151, 156; Vu v. John Morrell & Co., 2000 SD 105, ¶ 20, 615 N.W.2d 171, 175; Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 13, 606 N.W.2d 919, 922; Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 9, 557 N.W.2d 764, 766; Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395; Helms v. Lynns, Inc., 1996 SD 8, ¶ 11, 542 N.W.2d 764, 766; West v. John Morrell & Co., 460 N.W.2d 745, 747 (S.D.1990); Wold v. Meilman Food Indus., Inc., 269 N.W.2d 112, 114 n1 (SD 1978); Salmon, 72 S.D. 110, 30 N.W.2d 644, 648.

[¶ 13.] In Salmon, we held that a claimant’s attempt to receive a level of medical benefits higher than those available at the time of his injury was improper. Any other result “would impair the obligation of contracts.” 72 S.D. at 118, 30 N.W.2d at 648. This proposition, as originated in Salmon, has since remained a constant principle underlying South Dakota’s workers’ compensation jurisprudence. We most recently reiterated this principle of law in Homestake Mining Co., 2002 SD 46, ¶ 21, 644 N.W.2d at 617. We see no reason why that basic tenet would‘be inapplicable here.

[¶ 14.] The fact that Sopko experienced a change in condition has no bearing on today’s analysis. As we recognized in Salmon, “[the] duration of temporary total incapacity was a matter not ascertainable when the award was made. It was a matter which was dependent upon subsequent conditions and ... therefore reviewable.” Id. at 647. Moreover, in the later case of Stowsand v. Jack Rabbit Lines, 75 S.D. 11, 14, 58 N.W.2d 298, 299 (1953), we cited Salmon, among other cases, for the proposition that compensation may be altered based upon a change in the claimant’s condition. This Court stated:

Claimant refers to SDC 64.0609[SDCL 62-7-33’s predecessor] which, in substance, provides that the Industrial Commissioner may on application review an award and make another award ending, diminishing or increasing compensation when he “finds the condition of the employee warrants such action.” This statute does not provide a method of correcting errors made in fixing the amount of an award, but confers authority upon the Industrial Commissioner to end, diminish or increase the compensation previously awarded, provided there is a change in condition subsequent to the entry of the last award. Chittenden v. Jarvis, 68 S.D. 5, 297 N.W. 787 (1941); Middleton v. City of Watertown, 70 S.D. 158, 16 N.W.2d 39 (1944); Salmon v. Denhart Elevators, 72 S.D. 110, 30 N.W.2d 644 (1948).

Stowsand, 75 S.D. 11, 14, 58 N.W.2d 298, 299. However, it is subject to the caveat that compensation can only be adjusted within the range of benefits available at the time of injury.

[¶ 15.] To accept Sopko’s position and calculate his benefit rate based on the 1993 rate of compensation would constitute an impermissible retroactive modification of benefits. See West, 460 N.W.2d at 747 (stating that a “general rule of statutory construction is that a statute will not operate retroactively unless the act clearly expresses an intent to do so.”). Furthermore, in West we held that “a statute which affects merely a remedy or procedure may be given retroactive effect. Statutes affecting substantive rights, however, are not to be given retroactive effect.” Id. See also Homestake Mining, 2002 SD 46, ¶ 28, 644 N.W.2d at 619. Pursuant to this authority, Sopko’s rate of compensation vested in 1974 when his injury occurred. Allowing benefits for the subsequent higher compensation rate would constitute a clear violation of the prohibition against giving statutes which control substantive rights retroactive effect.

[¶ 16.] Finally, we address the circuit court’s characterization that Sopko’s change in condition in 199B was a “new injury.” Specifically, the circuit court found that “the manifestation of the Claimant’s severe seizure condition ... was a legally distinct and separate injury ... which vested new rights and obligations in the parties ...” This finding is not supported by the record, and Sopko did not plead the existence of a new injury. Furthermore, in Sopko I, we stated that Sopko experienced a change in condition allowing him to reopen his petition pursuant to SDCL 62-7-33. Sopko I, 1998 SD 8, at ¶ 16, 575 N.W.2d at 232. In this appeal, the facts remain the same, Sopko experienced a change in condition and not a new injury. That fact controls the resolution of this issue.

ISSUE TWO

[¶ 17.] Did the circuit court err in holding that the beneficiaries of death benefits under South Dakota’s workers’ compensation scheme are determined at the time of death, not at the time of injury?

[¶ 18.] We also reverse the circuit court’s decision that Sopko’s beneficiaries are entitled to death benefits under SDCL 62-4-12. SDCL 62-4-12, as it existed at the time of Sopko’s injuries in 1974, provided:

The amount of compensation which shall be paid for an injury to the employee resulting in death, if the employee leaves a widower living with and actually dependent upon the employee, or a widow, child, or children whom the employee was under legal obligation to support at the time of the injury, shall be a sum equal to five times the annual earnings of the employee, but not less in any event than ten thousand dollars, and not more than thirty five thousand dollars. (emphasis added.)

Here, Sopko was unmarried and childless at the time of his injury. He clearly was under no legal obligation to support them at the time of his injury. As such, the wife and child are not entitled to death benefits. As previously discussed, the rights and obligations of the parties are vested at the time the injury occurs. See, e.g. Salmon, 72 S.D. at 118, 30 N.W.2d at 648; Faircloth, 2000 SD 158, ¶ 5, 620 N.W.2d at 200. Any other result would be in direct contravention of SDCL 62-4-12.

CONCLUSION

[¶ 19.] Unfortunately, the result here is harsh to Sopko’s beneficiaries. He gamely fought his condition and worked for almost a quarter century. His beneficiaries make a sympathetic case for recovery. However, as we have stated many times and again repeat in this opinion, the workers’ compensation scheme is a creature of the legislature. The ability to make the necessary changes to benefit Sopko’s beneficiaries is within the province of the legislative branch and not the judiciary.

[¶ 20.] We reverse and remand with directions to re-instate the decision of Department.

[1121.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 22.] SRSTKA, Circuit Judge, for ZINTER, Justice, disqualified.

[¶ 23.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court did not participate.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2003 SD 71
    STATE of South Dakota, Plaintiff and Appellee, v. Samuel Wayne BOSTON, Defendant and Appellant.
    No. 22439.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Decided June 11, 2003.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Matthew T. Stephens, Rapid City, South Dakota, and LYnn A. Moran, Custer, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Samuel Wayne Boston was convicted of second-degree felony murder on May 5, 2002. The trial court sentenced Boston to life in prison without parole for the murder of Richard Gitter. Boston appeals his conviction raising five issues. We affirm.

FACTS

[¶ 2.] On March 17, 2001, Boston placed a 911 call requesting assistance because Gitter was unresponsive. When emergency personnel arrived at Boston’s apartment, they found 45-year-old Gitter lying on his side in Boston’s bathtub. Git-ter was completely unclothed and not breathing. His clothing had been folded and placed on the edge of Boston’s bed. Boston told officers that Gitter had arrived at the apartment earlier in the afternoon very inebriated and had passed out on Boston’s couch. Boston told police that he disrobed Gitter and placed him in the tub. According to Boston, Gitter was unconscious but alive when Boston put him in the tub, but he later stopped breathing. Medical personnel determined that Gitter was dead. Gitter had a fresh laceration over his right eye and injuries similar to rug burns on both knees. Boston’s explanation of how Gitter received the injuries changed with nearly every telling. The investigating officer felt that the circumstances of death were highly suspicious and designated the area a crime scene.

[¶ 3.] A subsequent search revealed blood-stained clothing belonging to both the victim and the Defendant, blood stains in various places throughout the apartment and blood stains on the inside and outside of the underwear worn by Defendant. The police found a rug and other laundry that Boston had washed that day prior to their arrival. Police also found a camera with film. The film contained several pictures of the unclothed victim lying in the bathtub. In some of the pictures, Defendant’s shoes are visible because he is standing on the edge of the tub and shooting downward. In one of the pictures, Defendant’s unclothed stomach is visible. All of the pictures focus on the victim’s backside, with one focusing only on his buttocks. In a laundry room located outside of Boston’s apartment, police found pornographic material focusing on female buttocks which Boston had torn, removed from his apartment and placed in a garbage can prior to the arrival of the police. Police also found a videotape entitled “Butt Man.”

[¶ 4.] The State’s pathologist determined that the cause of death was manual strangulation and Boston was charged. At trial, Boston was convicted of second-degree felony murder, specifically, murder while engaged in or attempting sexual contact with a person incapable of consenting as defined in SDCL 22-22-7.2 in violation of SDCL 22-16-9. He appeals raising five issues:

1. Whether the trial court erred when it denied Defendant’s motions for judgment of acquittal.

He claims the trial court abused its discretion when it:

2. allowed evidence regarding Defendant’s sexual orientation;
3. denied Defendant’s motion for a new trial based on alleged failure to disclose exculpatory evidence;
4. denied admission of Defendant’s psychological and psychiatric history; and
5. denied Defendant’s motion for a new trial based on prosecutorial misconduct and compromise verdict.

We affirm the trial court on all issues.

[¶ 5.] 1. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT’S MOTIONS FOR JUDGMENT OF ACQUITTAL.

[¶ 6.] Boston argues that the trial court erred in denying his motions for judgment of acquittal. Our inquiry is whether the State set forward sufficient evidence from which the finder of fact could reasonably find the defendant guilty. State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838. The question 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; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.” Id. (quoting State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994)). This Court will not resolve conflicts in the evidence nor pass on the credibility of the witnesses. These functions are the exclusive province of the jury. Heftel, 513 N.W.2d at 399. “We afford the strongest presumption in favor of the jury’s determination of credibility.” Id. (quoting State v. Arguello, 502 N.W.2d 548, 552 (S.D.1993) (additional citations omitted)).

[¶ 7.] Boston argues that the State’s circumstantial evidence was insufficient to support his conviction. Relying heavily on the testimony of his expert, Boston argues first that it is unlikely that the victim died by manual strangulation as the State’s pathologist testified. Boston asserts that the cause of death was a combination of alcohol and drug poisoning because the victim had high levels of alcohol and Paxil in his system at death. However, the jury could have disregarded the expert’s testimony because the Defendant’s expert was discredited when it was revealed that he did not read the articles upon which he relied for this assertion. Further, the case studies upon which the expert relied had facts not in evidence in this case. For example, in one of the case studies, the victim died from drug and alcohol overdose but had two other drugs in addition to Paxil and alcohol in his system. Furthermore, it is the exclusive province of the jury to pass on the credibility of the witnesses, and the jury was free to accept or reject all or part of the testimony presented by the conflicting experts. Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 17, 613 N.W.2d 531, 537 (quoting Kester v. Colonial Manor of Cus ter, 1997 SD 127, 24, 571 N.W.2d 376, 380) (additional citation omitted).

[¶ 8.] Second, Boston argues that the evidence proves that it was physically impossible to carry out the crime for which he was convicted. Specifically, he argues that the victim was alive at the time he was placed in the bathtub. He asserts that therefore Boston had to strangle and have sexual contact with the victim while he was in the bathtub. However, this assertion rests on the assumption that the victim died while he was in the bathtub. Neither expert testified definitively that Gitter died in the bathtub. Rather, they testified that his injuries occurred while he was still alive.

[¶ 9.] The evidence at trial was sufficient to support the conviction. The State’s expert testified that the victim died from manual strangulation. Boston argues that there were no external injuries on the victim to support the finding that the victim was strangled. However, the State’s expert testified that external injuries usually occur when the victim is struggling. The evidence at trial, including the Defendant’s own statements, indicated that Gitter was extremely inebriated and therefore would not have been struggling. Furthermore, the Defendant’s expert conceded that the materials he relied upon indicate that when an adult is unconscious from extreme intoxication, strangulation could occur without external or internal neck injuries.

[¶ 10.] Boston next argues that there was no evidence of sexual contact to prove the underlying crime for the felony murder conviction. He argues first that the experts testified that there was no blood or semen found and that had there been semen it could not have simply been washed away. However, Boston’s expert testified to the contrary stating that semen could be removed in such a way. Furthermore, Defendant’s pictures show that he changed his own clothing at some point during his interaction with the victim. The pictures reveal his unclothed stomach and the fact that at the time he took the pictures, Boston was not wearing the bloody shoes police found later in his bedroom. The jury could also have inferred sexual contact based on Defendant’s actions before he called the police. He removed pornographic material depicting women’s buttocks from his apartment, washed the entrance rug, did some laundry, and changed his clothes. In other words, that he was attempting to conceal the crime. We have noted that concealment may be evidence of guilt or consciousness of guilt. State v. Frazier, 2001 SD 19, ¶ 41, 622 N.W.2d 246, 260. Furthermore, Defendant changed his story throughout the investigation, creating a reasonable inference that he was attempting to conceal the crime. Finally, the bizarre circumstances of this death could have led the jury to the reasonable conclusion that there was either an attempt or sexual contact. Specifically, the Defendant took off all of the victim’s clothes, removed articles of his own clothing, placed the victim in the bathtub, admitted that he touched the victim’s buttocks with his hands and took pictures of the naked victim focused primarily on his backside while he was either unconscious or dead. Based on the evidence presented by the State, the jury could have reasonably found either an attempt or sexual contact.

[¶ 11.] There is no showing that the trial court erred in denying Boston’s motions for judgment of acquittal.

[¶ 12.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED EVIDENCE OF DEFENDANT’S SEXUAL ORIENTATION.

[¶ 13.] Prior .to trial, the State filed a motion to admit evidence of Boston’s bisexuality at trial. The trial court granted the motion to the extent that 'the State was allowed to introduce Boston’s statement to Agent John Walker of the DCI that Boston was bisexual and Boston’s subsequent denial of that fact to Walker. The State was also allowed to introduce Walker’s knowledge of the fact that Boston had committed homosexual acts. The transcript from the motion hearing at which the trial court decided this issue is not in the record nor is it listed in the index to the record. There is, however, a copy of the trial court’s order granting the State’s motion in part. The trial court allowed this evidence under SDCL 19-12-5, the crimes, wrongs and other acts statute, and as impeachment evidence related to Boston’s credibility.

[¶ 14.] The trial courts evidentiary rulings are presumed to be correct. We review those rulings under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). Under this standard, the Defendant must demonstrate error and show that it was prejudicial error. State ex rel. Dep’t of Transp. v. Spiry, 1996 SD 14, 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. Goodroad, 1997 SD 46, 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). Without the motion hearing transcript, and no showing of prejudice, the Defendant fails to show that the trial court abused its discretion in admitting this evidence.

[¶ 15.] At trial, no specific homosexual acts were introduced; the evidence was used to show that Boston had lied to the investigating officer in an attempt to conceal his guilt. Therefore, although one of the justifications for allowing the evidence was SDCL 19-12-5, at trial, the evidence was used solely to impeach Boston’s statement to Walker that he was a heterosexual. The testimony at trial was as follows:

Q: (State’s Attorney) Did you ask [Boston] what his sexual orientation was?
A: (Agent Walker) Yes, I did.
Q: And what did he say?
A: He said he was heterosexual.
Q: Was that different than information or something he had told you in a previous interview?
A: Yes, it was.
Q: What had he told you in a previous interview?
A: That he was bisexual.
Q: And what does that mean to you if somebody is bisexual?
A: A bisexual person will have sexual intercourse with both males and females. He doesn’t have a particular preference one way or the other.

[¶ 16.] Boston argues that the motion hearing transcript makes it clear that the sole justification for allowing this evidence was that it was other acts evidence. We cannot say whether that is the case or not, but the judge’s order with regard to this evidence clearly states .the evidence is relevant and admissible both under SDCL 19-12-5 and as impeachment evidence. Because of the missing portion of the record, it is not possible for the Court to determine whether the trial court engaged in appropriate analysis and balancing to support admission of this evidence under the other acts statute. However, the evidence was admissible and was used to impeach Boston’s statements to the officer. Moreover, the Defendant failed to object to the above line of questioning at trial, and that constitutes waiver of the issue. State v. Andrews, 2001 SD 31, ¶ 19, 623 N.W.2d 78, 83; See also State v. Corey, 2001 SD 53, ¶ 9, 624 N.W.2d 841, 844. Finally, the Defendant’s assertion that the trial court admitted the testimony as prior acts evidence is unsupported in the trial transcript wherein no limiting instruction is requested or given to the jury with regard to permissible use of such evidence. Because the Defendant fails to show that the trial court abused its discretion, we affirm the trial courts decision to admit this evidence.

[¶ 17.] 3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON ALLEGATIONS THAT EXCULPATORY EVIDENCE WAS NOT PRODUCED BEFORE TRIAL.

[¶ 18.] Boston made a motion for a new trial based on his allegation that the State failed to disclose exculpatory evidence pri- or to trial and that information was intentionally withheld by Agent Walker and not disclosed until almost two weeks after the trial ended. Boston’s first allegation is that prior to trial, Agent Walker interviewed Mark Bryan, a friend of the Defendant. Bryan told the agent that he had taken pictures of Boston when Boston was inebriated. Agent Walker had those pictures but the presence of the pictures was not disclosed to defense counsel and they were not mentioned in discovery. Boston’s second allegation is that the State failed to disclose Agent Walker’s interview of Army public affairs officer McDowell. McDowell informed Walker that paratrooper training did not include hand-to-hand combat but Boston would have been taught ligature strangulation in infantry training. McDowell also noted that manual strangulation is not typically taught in infantry training.

[¶ 19.] Boston argues that the pictures of Defendant taken by Bryan “[go] to the very heart of why the Defendant himself might take photographs of a person who was drunk and naked.” We have held that in order to win a new trial based on after-discovered evidence, the defendant must show:

1) the evidence was undiscovered by the movant at the time of trial;
2) the evidence is material, not merely cumulative or impeaching;
3) that it would probably produce an acquittal; and
4) that no lack of diligence caused the movant to fail to discover the evidence earlier.

State v. Gehm, 1999 SD 82, ¶ 13, 600 N.W.2d 535, 540 (additional citations omitted). The court did not abuse its discretion in denying a new trial based on the withholding of this evidence. Boston has failed to show at least two of the four requirements. He argues on appeal that the fact that his friend took pictures of him while he was intoxicated explains why he would take pictures of Gitter while Gitter was intoxicated. However, the pictures taken of Boston when he was inebriated were taken while Boston was fully clothed, awake and presumably aware of what was occurring. There is little similarity between these and the photos of the unclothed, unconscious Gitter, which focus primarily on his buttocks. Therefore, he cannot meet prong (4) because he was aware of the pictures and cannot meet prong (3) because he fails to show that this evidence would probably have produced an acquittal.

[¶ 20.] The trial court did not abuse its discretion in refusing to grant a new trial based on the interview of the army public affairs officer. Boston argues that at the time of trial, based on his interview with the public relations officer, Agent Walker knew that Boston did not possess the skill to effect the strangulation of the victim. Reading the report of the interview is enough to dispose of Boston’s assertions that 1) the letter is exculpatory and 2) that it would have led to acquittal. The report states in part that McDowell, the army officer, told Walker that a person in paratrooper training would not receive any hand-to-hand combat training. However, the officer went on to explain that a portion of infantry training would include ligature strangulation training, but that

it would be extremely difficult to locate any information or persons who might have trained Boston. McDowell stated that the number of persons going through the various types of training in the Army would be in the thousands [...] and that the programs would be constantly changing.

In short, the report merely reveals that Boston would have been trained in at least one choke-hold and it cannot be determined whether he learned others during his training. The letter certainly does not go so far as to say Boston did not know how to strangle a person manually, or that it would be difficult or impossible for him to have done so. The vague nature of the report and its failure to comment on anything specific to Boston makes its exculpatory value minimal at best. Boston has also faded to show that introduction of the report at trial would probably have led to acquittal. Finally, if anyone was aware of the extent of Boston’s military training, it was Boston himself. Had that information been exculpatory, Boston could have presented it. The trial court is affirmed on this issue.

[¶ 21.] 4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED ADMISSION OF DEFENDANT’S PSYCHL ATRIC RECORDS.

[¶ 22.] Boston argues that the trial court abused its discretion in granting the State’s motion in limine to prohibit introduction of Boston’s psychiatric and psychological history, disorders and diagnoses. He asserts that it was necessary to explain his paranoid schizophrenia in order to counter the State’s attempt to portray him as a military paratrooper with special skills. Boston argues vaguely that he may have called one or more of the psychiatrists who treated him at the Veteran’s Administration medical center so that they could verify that he was docile and nonviolent. He also argues that either the medical record-keeper who testified at trial or his apartment manager could have testified to his disabilities. The Defendant asserts that this information could have explained why he disrobed the victim before placing him in the tub and why he folded the victim’s clothes and placed them on the bed. However, no offer of proof was made by Defendant on any of these matters.

[¶23.] As the trial court noted, the Defendant failed to “specify what diagnosis or evidence [he] would intend to offer, or through which witness [he] would intend to offer such evidence[.]” Furthermore, the trial court found that the Defendant’s mental history would be “irrelevant, misleading and confusing to the jury” because the Defendant had already withdrawn his insanity plea' and he was not arguing that mental illness prevented him from forming the requisite intent. ' The Defendant made no showing before the trial court or this Court of the relevance of the proffered evidence. There is no showing that the trial court abused its discretion in granting the motion to preclude this evidence.

[¶ 24.] 5. WHETHER THE TRIAL-COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON PROSECUTO-RIAL MISCONDUCT AND COMPROMISE VERDICT.

[¶ 25.] Defendant argues that the trial court abused its discretion in denying his first motion for a new trial. He asserts initially that the State improperly addressed an individual juror during closing arguments. The record reflects that during jury voir dire, the State asked the potential jurors to raise their hands if they had children. The prosecutor then had a discussion with one of those jurors in which she described the meaning of reasonable doubt with an analogy to a child caught standing before a broken cookie jar with crumbs on his face. The prosecutor then addressed the jury as a whole stating,

that’s kind of the point that I’m making that sometimes I think people get mistakenly led to believe that the State’s burden of proof in a case is that if there is any other possible explanation for this, then we have to acquit and that’s not what the law is. It has to be a reasonable doubt. And when you figure that out, what you’re asked to do is to bring your every day life experiences like dealing with our children and having to listen to different sides of the story and how do you figure that out? You use your common sense and you think about things you’ve heard before and that’s what we’re asking you to do. Will everyone agree and promise me that you’ll use your common sense and apply your everyday life experiences like that into the courtroom when you’re judging the evidence in this case? A show of hands who will agree to do that?

In closing argument, the State argued,

[a]nd you remember when we were doing jury selection and I talked to you, I gave that example to you about how you try to sort out the truth in your everyday lives and we use the analogy with your children and the cookie jar dropping and breaking in the kitchen. How you come in later and you find the cookie jar broken with the cookies on the floor and you go find your son and he had got' cookie crumbs on his face and chocolate on his fingers and you make a reasonable inference that he did it and he starts — what does he do initially, he denies it. I didn’t do it. Here’s how it must have happened. That’s what we have got in this case ... And it’s the same thing with the children example we talked about, could the wind have blown through the window and knocked that cookie jar off the shelf? Well, possibly. But, you know, that doesn’t account for the cookie crumbs and the chocolate on your son’s face. And who got caught with the cookie crumbs and chocolate all over their face in this case is Sam Boston[.]

[¶ 26.] The Defendant makes the ■unsupported claim that the prosecutor singled out one juror. However, he did not object to the alleged misconduct during closing arguments. Having failed to give the trial court the opportunity to rule on this issue by objecting at the time, Defendant has waived this argument on appeal. Corey, 2001 SD 53, ¶ 9, 624 N.W.2d at 844.

[¶ 27.] Next, Boston claims that the State “produced emotional manifestations of the victim’s family with the showing of Christmas photographs of the decedent[.]” The only authority cited by Boston in support of this argument discusses emotional outbursts during a trial. See Jay M. Zitter, JD, Annotation, Emotional Manifestations by Victim or Family of Victim During Criminal Trial as Ground for Reversal, New Trial, or Mistrial, 31 A.L.R4th 229 (198V). This authority is not on point and does not support Boston’s assertion that showing the pictures was prejudicial and warranted a new trial. At the time the pictures were shown at trial, Defense counsel made no objection and thus failed to preserve the issue for appeal. Failure to cite relevant authority in support of his position and failure to object at trial constitute waiver of this issue. Andrews, 2001 SD 31, ¶ 19, 623 N.W.2d at 83; State v. Phillips, 489 N.W.2d 613, 616 (S.D.1992) (stating, “[f]ailure to cite authority violates SDCL 15-26A-60(6) and constitutes a waiver of that issue”) (additional citation omitted).

[¶ 28.] Boston’s final argument is that a note sent by the jury to the judge was evidence of a compromise verdict. The note was signed by five jurors and sent to the judge at the same time the jury announced it had reached its verdict. The note stated:

In the case of Samuel Boston, 5/3/02:
We the Members of the Jury are very disappointed with [the way-crossed out] the State’s Evidence. The Lack of gathering evidence and the evidence gathered. Very Shabby Work on the State’s part.

This note alone is insufficient to establish there was a compromise verdict, particularly considering that the jury was polled and each juror affirmed the verdict. The Defendant did not inquire any further at the trial court level and thus established no record to determine whether the polled jurors were being untruthful. Defendant has not shown that the trial court abused its discretion in denying his motion for a new trial.

[¶ 29.] The trial court is affirmed.

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

      . At one time, Boston was an Army paratrooper.

      . Ligature is defined as, "a cord wire, or bandage used for tying or binding.” American Heritage College Dictionary, 784 (3d ed. 1997). Ligature strangulation is thus strangulation through use of a cord or rope or similar device as opposed to manual strangulation which occurs when one strangles another with their hands.

      . Defendant argues on appeal that he has obsessive compulsive disorder. This argument was never made before the trial court and is thus waived. Andrews, 2001 SD 31, ¶ 19, 623 N.W.2d at 83.

      . The Defendant also argues that the photographs were not in the photo log of the photos intended to be offered by the State. This assertion is not supported as the record indicates they were designated by the State.


author: GILBERTSON, Chief Justice. ZINTER, Justice

text:
    2003 SD 73
    Patricia M. DIVICH, Plaintiff and Appellant, v. Richard Allen DIVICH, Defendant and Appellee.
    No. 22537.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Decided June 18, 2003.

      Rebecca A. Porter, Rapid City, for plaintiff and appellant.
    Elizabeth M. Frederick, Frederick Law Office, Rapid City, for defendant and ap-pellee.
   GILBERTSON, Chief Justice.

[¶ 1.] This appeal is brought by Patricia Paul (formerly Patricia Divich) after a remand hearing in which the trial court entered a disputed Qualified Domestic Relation Order (QDRO) and denied attorney’s fees to Patricia. We reverse and remand as to the QDRO and the denial of attorney’s fees.

FACTS AND PROCEDURE

[¶2.] Patricia and Richard Divich divorced in 1988 after twenty-eight years of marriage. Richard, who was a teacher for the Rapid City School System, receives retirement benefits through the retirement fund administered by the South Dakota Retirement System. The parties’ decree of divorce incorporated the provisions of their Stipulation and Property Settlement Agreement. As part of the settlement, the following paragraph was included:

A. [Patricia] shall have a vested interest in [Richard’s] retirement program under the South Dakota Retirement System. [Patricia’s] interest shall be defined as:
1. Fifty percent (50%) of the benefit multiplied by the number of years during the marriage in which contributions to the program were made and divided by the total number of years in which contributions were made to the program.
2. [Patricia] shall be entitled to this division of the benefits whenever [Richard] should draw on his benefits. More specifically, should [Richard] liquidate the account prior to retirement, [Patricia’s] share would be determined as above and distributed directly to her at the time of liquidation. If on the other hand [Richard] continues the account until he commences to draw retirement benefits therefrom, [Patricia’s] share of the benefits shall be determined as above and be paid to her with the same frequency as the benefit received by [Richard].
3. That [Richard] shall maintain [Patricia’s] status as survivor benefit on the existing retirement plan according to the terms thereof which will provide the greatest benefit to her in the event of his death.

[¶ 3.] In Divich v. Divich, 2002 SD 24, ¶ 11, 640 N.W.2d 758, 761 (Divich I), we reversed and remanded the trial court’s finding that the retirement provisions of the parties’ property settlement agreement was ambiguous. We also reversed and remanded the trial court’s denial of Patricia’s motion for attorney’s fees for a re-determination. Divich I, 2002 SD 24, ¶ 15, 640 N.W.2d at 763.

[¶ 4.] On remand, the trial court denied Patricia’s motion for attorney’s fees and also rejected her proposed QDRO, which attempted to provide that if Patricia predeceased Richard, her share of the retirement benefits would be payable to her estate. Instead, the trial court entered a QDRO which provided that if Patricia predeceased Richard, her share of the retirement benefits would revert back to him.

[¶ 5.] Moreover, on July 8, 2002, the trial court entered a QDRO that contained the following clause to which Patricia objected:

The Alternate Payee shall receive a separate monthly payment (assignment) from the Plan equal to 34.2% of the benefit that the Participant otherwise would receive from the Plan on a monthly basis. The monies shall be paid simultaneously with the benefit payment from the Plan to the Participant and shall continue until the earlier of the Alternate Payee’s death or the Participant’s death. After this assignment, the Participant shall have no remaining rights to the portion assigned. If the Alternate Payee does predecease the Participant, then and in that event, all of the monthly benefit payment from the Plan thereafter shall be paid to the Participant.

(emphasis added.)

[¶ 6.] Patricia brings this appeal and raises the following issues:

1. Whether Patricia’s share of retirement benefits is a property right that should be paid to Patricia’s estate if she predeceases Richard.
2. Whether the trial court abused its discretion when it denied Patricia’s application for attorney’s fees.

STANDARD OF REVIEW

[¶ 7.] According to Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991), we will not “disturb a division of property unless it clearly appears the trial court abused its discretion.” Id. (citing Johnson v. Johnson, 471 N.W.2d 156 (S.D.1991); Fox v. Fox, 467 N.W.2d 762 (S.D.1991); Studt v. Studt, 443 N.W.2d 639 (S.D.1989)). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Kanta, 479 N.W.2d at 507 (citing Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984); Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981); Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961)). The interpretation of a retirement provision contained within a property settlement is a question of law reviewed by this Court de novo. Divich I, 2002 SD 24, ¶ 9, 640 N.W.2d at 761.

[¶ 8.] According to Zepeda v. Zepeda, we review the denial of attorney fees in a divorce action under the abuse of discretion standard. 2001 SD 101, ¶ 27, 632 N.W.2d 48, 57 (citing Whalen v. Whalen, 490 N.W.2d 276, 284 (S.D.1992) (modified on other grounds) (citations omitted)).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether Patricia’s share of retirement benefits is a property right that should be paid to Patricia’s estate if she predeceases Richard.

[¶ 10.] Patricia argues that the trial court should have entered her proposed QDRO. Specifically, she argues that there is no language in the parties’ Stipulation and Agreement indicating that Patricia agreed to divest her share of Richard’s retirement benefits if she predeceases him. Therefore, she contends, when the trial court entered a QDRO that provided if she predeceased Richard her share of the retirement benefits would return to him, it was an impermissible modification of the property settlement.

[¶ 11.] “ ‘In South Dakota a retirement plan has been recognized as a divisible marital asset since it represents consideration in lieu of a higher present salary. Contributions made to the pension plan would have been available to the family as disposable income during the marriage.’ ” Bell v. Bell, 499 N.W.2d 145, 147 (S.D.1993) (quoting Stemper v. Stemper, 403 N.W.2d 405, 408 (S.D.1987)). However, despite this well-settled point of law that a retirement plan is a property right, the trial court found that “when [Patricia’s] gone, [her share of that retirement fund] goes with her.”

[¶ 12.] Whether a share of a retirement plan awarded in a divorce action is a property right which should continue to be paid to the estate of a spouse who predeceases the employee spouse, is a case of first impression for this Court. Richard relies on Ablamis v. Roper, 937 F.2d 1450 (9thCir.1991), for the assertion that benefits provided for under a retirement plan may not be assigned or alienated. Richard, therefore, argues that Patricia’s proposed QDRO was correctly rejected by the trial court.

[¶ 13.] In Ablamis, the parties were married in California, a community property state, and remained married until the wife passed away. 937 F.2d at 1452. In Mrs. Ablamis’ will, she devised “all property subject to [her] testamentary power including [her] one-half community property ... assets [she] may have.” Thereafter, the executrix of her estate asserted that the property should include all community property, including a one-half interest in her husband’s pension rights, which were fully vested. Id. at 1455. However, the Ninth Circuit Court of Appeals disagreed and found that ERISA’s spendthrift provisions preempted any state community property law. 937 F.2d at 1456-57. In the case at hand, as agreed to by both parties, the South Dakota Retirement System plan is exempt from federal legislation. See 29 U.S.C. § 1003(b)(1). Furthermore, even if it was not exempted, Ablamis acknowledged that ERISA’s spendthrift provisions are not applicable to QDROs. Id. at 1456.

[¶ 14.] Next, Richard argues that the purpose of retirement plans is to provide for participants and their dependents or surviving spouses during their lifetime. Nonetheless, an interest in a retirement plan is marital property, subject to an equitable division. See, e.g., Grode v. Grode, 1996 SD 15, ¶ 24, 543 N.W.2d 795, 802. We note that Wade Hubbard, a witness appearing from the South Dakota Retirement System, referenced a form for a QDRO which treated the retirement benefit as a fixed asset which would go to the spouse’s estate upon the spouse’s death. Moreover, in examining whether an item is marital property or alimony, “it is not the label that is placed on the award that controls, but rather the nature of the award.” Saxvik v. Saxvik, 1996 SD 18, ¶ 16, 544 N.W.2d 177, 180 (citing Hautala v. Hautala, 417 N.W.2d 879, 882 (S.D.1988)). Patricia argues that if Richard had the resources to buy out Patricia’s share of his retirement at full value, that money would be hers to use as she pleased. Further, if she died before using the money, then it would pass to her estate. Therefore, it follows that if she receives a monthly payment, instead of a lump sum award, then that payment should continue to be paid to her estate. We agree with Patricia’s argument and hold that her proposed QDRO should have been entered.

[¶ 15.] 2. Whether the trial court abused its discretion when it denied Patricia’s application for attorney’s fees.

[¶ 16.] In Dividí I, we stated that “[i]n view of our reversal on the merits of the trial court’s order and judgment, we also reverse the trial court’s denial of Patricia’s motion for attorney’s fees and remand the issue to the trial court for re-determination in light of our holding above.” 2002 SD 24, ¶ 15, 640 N.W.2d at 762-63. On remand, the trial court denied Patricia’s request for attorney’s fees but allowed trial and post appeal costs, as she was the prevailing party.

[¶ 17.] In determining whether to award attorney’s fees, “a court may consider the property each party owns; their relative incomes; the nature of their assets, fixed or liquid; and whether either party unreasonably prolonged the divorce.” Zepeda, 2001 SD 101, ¶ 28, 632 N.W.2d at 57. The trial court determined that both parties were responsible for their respective attorney’s fees because there was a “legitimate dispute to sort out the language of the stipulation.” In light of our reversal of Issue One, we remand to the trial court for a consideration of an award of attorney’s fees of not less than $3,000.

[¶ 18.] Patricia has also made a request for appellate attorney’s fees to which she has attached an itemized statement. We award appellate- attorney’s fees in the amount of $3,000.

[¶ 19.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 20.] ZINTER, Justice, concurs in part and dissents in part.

ZINTER, Justice

(concurring in part and dissenting in part).

[If 21.] I concur in all of the Court’s opinion, except that portion of Issue 2 that reverses the trial court’s decision to deny Patricia’s attorney fees incurred at trial. In the prior appeal, this Court remanded the attorney fee issue to the trial court for consideration. The trial court subsequently entered findings reflecting that it considered appropriate standards. The trial court denied Patricia’s request because this case involved a legitimate dispute, both parties expended considerable attorney fees and expenses, and Richard did not unreasonably increase the cost of these proceedings.

[¶ 22.] In my view, a decision made for these reasons is not an abuse of discretion; i.e., discretion exercised to an end or purpose not justified by, and clearly against reason and evidence. See supra, ¶ 7. Here, both parties incurred substantial attorney fees in a lengthy dispute, the trial court expressly found that Richard did not unreasonably delay the proceedings, and this dispute involved a case of first impression in this jurisdiction. See supra, ¶ 12. Moreover, we have only had the benefit of reviewing the party’s briefs on two occasions, while the trial court considered the attorney fee issue after substantial involvement with the parties throughout the trials preceding both appeals. Under these circumstances, I would affirm the trial court’s decision on fees incurred at trial.


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST James T. HANVIK, a Minnesota Attorney, Registration No. 158963.
    No. C3-99-815.
    Supreme Court of Minnesota.
    July 16, 2003.
   ORDER

On April 27, 2000, this court indefinitely suspended petitioner James T. Hanvik for a minimum of two years. See In re Hanvik, 609 N.W.2d 235 (Minn.2000).

On October 28, 2002, petitioner filed a petition for reinstatement. Following a hearing before a Lawyers Professional Responsibility Board panel, the panel found that petitioner presented clear and convincing evidence of his moral fitness and competence to practice law and recommended reinstatement and two years of supervised probation subject to the following conditions:

a. Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of probation.
b. Petitioner shall abide by the Minnesota Rules of Professional Conduct.
c. Petitioner shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of probation. Petitioner shall provide to the Director the names of four attorneys who have agreed to be nominated as petitioner’s supervisor within two weeks from the order of reinstatement. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, petitioner shall, on the first day of each month, provide the Director with an inventory of active client files as described in paragraph d. below and shall make active client files available to the Director upon request.
d. Petitioner shall cooperate fully with the supervisor in his/her efforts to monitor compliance with probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Petitioner shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters that petitioner is handling, and which will ensure that petitioner regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from the reinstatement order, petitioner shall provide to the Director and to his probation supervisor a detailed written plan outlining office procedures described in paragraph “e.” above, and shall update the written plan whenever any change in his practice occurs. Petitioner shall provide progress reports as requested,
g. If, at any time during the term of probation, petitioner becomes responsible for his own trust account, petitioner shall immediately inform the Director of that fact and shall ensure maintenance of that account in compliance with Minn. R. Prof. Conduct 1.15 and Lawyers Professional Responsibility Board Opinion No. 9. The required trust account books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyers Trust Account Board. Petitioner shall make such trust account books and records available to the Director within 30 days of the notification to the Director and thereafter shall make those books and records available at such intervals as the Director deems necessary to determine compliance.

The Director of the Office of Lawyers Professional Responsibility, with the agreement of petitioner, has requested this court to rule on the petition for reinstatement without a referee hearing, briefing or oral argument.

This court has independently reviewed the file and approves the disposition recommended by the panel.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that petitioner James T. Hanvik is reinstated to the practice of law effective immediately and is placed on supervised probation for two years subject to the recommended conditions set forth above.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST James J. BOYD, a Minnesota Attorney, Registration No. 1039X.
    No. A03-676.
    Supreme Court of Minnesota.
    July 16, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent James J. Boyd has committed professional misconduct warranting public discipline, namely, failure to timely file state and federal individual income tax returns in violation of Minn. R. Prof. Conduct 8.4(b) and (d).

The parties have entered into a stipulation with the Director in which respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and the parties jointly recommend that the appropriate discipline is a 6-month suspension with all but 30 days stayed subject to the following conditions:

a. Respondent’s suspension shall begin two weeks from the date of this order. One week prior to completion of the 30 days non-stayed suspension respondent may file and serve an affidavit seeking an order for reinstatement under Rule 18(f), RLPR. The reinstatement hearing provided for in Rule 18, RLPR, is waived.
b. Respondent shall comply with Rule 26, RLPR, and shall successfully complete the professional responsibility portion of the bar examination within one year from the date of this order.
c. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.
d. The remainder of the 6-month suspension shall be stayed and respondent shall be placed on probation until the later of 3 years or the completion of the following conditions:
(i) Respondent shall complete an agreement with the IRS regarding his federal arrearages and shall abide by the terms and conditions of his agreements with the Minnesota DOR and the IRS regarding the timely filing of all returns and payment of taxes.
(ii) Respondent shall provide quarterly to the Director proof of compliance with the tax agreements or provide a satisfaction of his tax obligations under his agreements with the IRS and the Minnesota DOR.
(iii) Respondent shall provide the Director with any requested tax authorizations to allow verification of his past and future tax filing and payment compliance.
(iv) Respondent shall continue treatment for depression with a mental health provider acceptable to the Director until he has provided the Director with a letter discharging him as no longer in need of treatment.
(v) Respondent shall provide the Director with reports from that mental health provider indicating that he is complying with the recommended treatment regimen at least semi-annually or as the Director may reasonably request.
(vi)Respondent successfully completes his federal sentence and provides the Director with proof of his discharge from probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James J. Boyd is suspended from the practice of law for 6 months, with all but 30 days of the suspension stayed subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for REINSTATEMENT OF Michael H. DAUB, a Minnesota Attorney, License No. 21222.
    No. A03-40.
    Supreme Court of Minnesota.
    July 17, 2003.
   ORDER

On October 4, 2001, this court indefinitely suspended petitioner Michael H. Daub from the practice of law for a minimum of four months. In re Daub, 634 N.W.2d 174 (Minn.2001). The order provided that upon reinstatement, petitioner would be placed on supervised probation for two years subject to the following conditions:

a. [Petitioner] shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. [Petitioner] shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, [petitioner] shall provide authorization for release of information and documentation to verify compliance with the terms of his probation.
b. [Petitioner] shall abide by the Minnesota Rules of Professional Conduct.
c. [Petitioner] shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. [Petitioner] shall provide to the Director the names of four attorneys who have agreed to be nominated as [petitioner]’s supervisor within two weeks from the date [petitioner] is reinstated. If, after diligent effort, [petitioner] is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise the [petitioner] shall on the first day of each month provide the Director with an inventory of active client files described in paragraph d. below. [Petitioner] shall make active client files available to the Director upon request.
d. [Petitioner] shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. [Petitioner] shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. [Petitioner] shall submit , to the supervisor an inventory of active client files by the first day of each month during the probation. With respect to each active chent file, the inventory shah disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. [Petitioners supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Within 30 days after his being reinstated to the practice of law, [petitioner] shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that [petitioner] is in compliance with the probation requirements. [Petitioner] shall provide progress reports as requested.
f. [Petitioner] shall maintain total abstinence from alcohol and other mood-altering chemicals, except that [petitioner] may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of [petitioner’s chemical dependency before issuing the prescription.
g. [Petitioner] shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.
h. [Petitioner] shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. [Petitioner] shall affirmatively report to .the Director, on or before the due date of the required returns, his compliance with the filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, [Petitioner] shall provide the Director with copies of all applications for filing extension and proof of approval of such applications. [Petitioner] shall provide all of the documents and information required herein without specific reminder or request.

Id. at 175-76.

On March 6, 2003, petitioner filed a petition for reinstatement. Following a hearing before a panel of the Lawyers Board on Professional Responsibility, the panel found that petitioner had presented clear and convincing evidence of his moral fitness and competence to practice law and recommended reinstatement and two years of supervised probation subject to the conditions previously ordered by this court.

The Director of the Office of Lawyers Professional Responsibility, with the agreement of petitioner, has requested that the court consider the panel’s recommendation without further briefing or hearing. The court concludes that reinstatement with two years of supervised probation subject to the previously ordered conditions is appropriate.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael H. Daub is reinstated to the practice of law effective immediately and is placed on supervised probation for two years subject to the conditions set forth above.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Jason Patrick GELLER, Petitioner, Appellant.
    No. CX-02-970.
    Supreme Court of Minnesota.
    July 24, 2003.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, Bemidji, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Jason Patrick Geller pled guilty to first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(b) (2002), and fleeing a peace officer in a motor vehicle in violation of Minn.Stat. § 609.487, subd. 3 (2002). Geller was sentenced to the presumptive guidelines sentence of an executed term of 48 months on the burglary conviction. For the fleeing conviction, the district court sentenced Geller to a consecutive 24-month executed prison term, which is an upward durational departure from the sentencing guidelines. The presumptive sentence for the fleeing-a-peace-officer charge is one year and one day stayed.

The district court did not state on the record at the time of sentencing the reasons for departure as required by the sentencing guidelines and this court’s decision in Williams v. State, 361 N.W.2d 840 (Minn.1985). Geller appealed to the court of appeals to have the sentence on the fleeing conviction reduced to the presumptive guidelines sentence because of the district court’s failure to provide reasons for the departure. The court of appeals held that the sentencing court erred when it departed from the presumptive sentence without stating on the record at the time of sentencing the reasons supporting the departure. On remand, the court of appeals ordered the sentencing court to “either state the reasons on the record for the departure or impose the presumptive sentence for the fleeing offense.” We granted Geller’s petition for review in which he argues that the court of appeals’ remand permitting the sentencing court to place its departure reasons on the record after the fact was impermissible. We agree and therefore reverse the court of appeals and remand to the sentencing court for imposition of the presumptive guidelines sentence.

On September 25, 2001, the Beltrami County Sheriffs Department received a report of a residential burglary from which the burglars fled in a Chevrolet Beretta. The Beretta was subsequently spotted by the police and a high-speed chase ensued at speeds that at times exceeded 100 miles per hour and that covered a distance of approximately 50 miles. During the chase, a bag of marijuana and three long guns were thrown from the car. The chase ended when the Beretta flipped onto its side. The guns, and a safe found in the car, had been taken from the burglarized home. Geller was driving the car, and his friend, Randy Stebe, was a passenger.

At the time of the offense, Geller was 16 years old. After being certified for trial as an adult, Geller pled guilty to both the burglary and fleeing charges in exchange for the prosecutor’s agreement to recommend that Geller receive concurrent, rather than consecutive, sentences. At the plea hearing, Geller attempted to minimize Stebe’s involvement in the offenses. He did this not knowing that Stebe had already pled guilty for his involvement. The district court accepted the plea and, noting his displeasure with Geller’s attitude and conduct during the plea colloquy, informed the parties that he was considering a departure from the presumptive sentences.

The district court gave the parties the opportunity to brief the departure issue. The prosecutor, while continuing to recommend concurrent sentences, argued for an upward durational departure for each conviction. The district court imposed the presumptive sentence for the burglary conviction and a consecutive 24-month executed sentence for the fleeing conviction, which is double the presumptive sentence.

We review a sentencing court’s departure from the sentencing guidelines for abuse of discretion. State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002). For sentencing departures, the guidelines require the sentencing court to “provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.” Minnesota Sentencing Guidelines II.D; accord McIntosh, 641 N.W.2d at 8 (requiring substantial and compelling circumstances to justify departure). For felony convictions, the “court shall state, on the record, findings of fact as to the reasons for departure.” Minn. R.Crim. P. 27.03, subd. 4(C). The rule also requires the filing of a departure report with the guidelines commission. Id. Concerned that trial courts were not complying with the guidelines departure report requirement, this court in Williams indicated that:

[I]n order to ensure future compliance * * * with the sentencing guidelines requirements, we prospectively adopt, effective the date this opinion is filed, the following general rules:
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

361 N.W.2d at 844 (emphasis added).

Geller argues that the court of appeals’ remand allowing the sentencing court to place its reasons for departure on the record after the fact is in direct conflict with Williams. Although conceding in its brief to this court and at oral argument that the sentencing court is required to inform defendants of its reasons for departing from the sentencing guidelines at the time of sentencing, the state argues that Williams

did not make clear the exclusive responsibility of the trial court to enunciate reasons for departure at the time of sentencing. Williams failed to mandate that all reasons for departure be expressed in open court to the defendant by the sentencing judge. It failed to require that the [cjourt’s verbal recitation of the reasons for departure be incorporated or appended to a written departure report.

(Emphasis omitted.) The state contends that this lack of clarity has resulted in two conflicting lines of cases from the court of appeals. In one line of cases, the court of appeals has given the sentencing judge an opportunity to provide reasons for a departure on remand when the judge fails to give reasons on the record at the time of sentencing. See State v. McAdory, 543 N.W.2d 692, 698 (Minn.App.1996); State v. Garrett, 479 N.W.2d 745, 749 (Minn.App.1992); State v. Sundstrom, 474 N.W.2d 213, 216 (Minn.App.1991); State v. Fieri, 461 N.W.2d 398, 401 (Minn.App.1990). In the other line of cases, it has not permitted departure. See State v. Hopkins, 486 N.W.2d 809, 812 (Minn.App.1992); State v. Synnes, 454 N.W.2d 646, 647 (Minn.App.1990); State v. Thompson, 414 N.W.2d 580, 584 (Minn.App.1987); State v. Gunderson, 407 N.W.2d 143, 145 (Minn.App.1987); State v. Pendzimas, 379 N.W.2d 247, 249 (Minn.App.1986). The state further contends that because this court denied review of Garrett we implicitly ratified the court of appeals’ holding in Garrett.

The state asks this court to more clearly mandate that defendants be informed of the reasons for departure at the time of sentencing and that the sentencing transcript stating the reasons for departure be appended to the departure report sent to the guidelines commission. Further, the state asks that we warn district courts that failure to comply in the future will result in imposition of a guideline sentence. The state asks that, in this case, we affirm the court of appeals remand because of the conflict in the court of appeals’ decisions.

Today we re-affirm Williams. The McAdory, Garrett, Sundstrom, Fieri line of cases notwithstanding, we conclude that the first rule we set out in Williams is clear: absent a statement of the reasons for the sentencing departure placed on the record at the time of sentencing, no departure will be allowed. As we discussed in Williams, this rule is consistent with the requirements of the sentencing guidelines and necessary to ensure compliance with them. 361 N.W.2d at 843-44.

Here, the sentencing court did not state the reasons for departure on the record at the time of sentencing. Thus, it was error for the court of appeals to remand to allow reasons for the departure to be given after the fact. Therefore, we reverse the court of appeals and remand to the district court for imposition of the presumptive guidelines sentence.

Reversed and remanded.

RUSSELL A. ANDERSON, J., took no part in the consideration or decision of this case.

      . Consecutive sentencing is permissive and not a departure from the sentencing guidelines when the defendant is sentenced for fleeing a police officer in addition to another crime committed as part of the same conduct. Minn.Stat. § 609.035, subd. 5 (2002); Minnesota Sentencing Guidelines II.F.6.

      . This contention has no merit. See Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732, 739 (Minn.1986) (explaining that denial of review gives no indication of this court s opinion of the lower court's decision).


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Carl James JARVIS, Petitioner, Appellant.
    No. C2-01-1097.
    Supreme Court of Minnesota.
    July 24, 2003.
    Rehearing Denied Aug. 27, 2003.
    Marie Wolf, Asst. State Public Defender, Minneapolis, MN, for Appellant.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Asst. Attorney General, St. Paul, MN, Alan L. Mitchell, St. Louis County Attorney, Duluth, MN, for Respondent.
   OPINION

MEYER, Justice.

Appellant Carl James Jarvis was convicted on three counts of first-degree criminal sexual conduct and one count of use of drugs to facilitate a crime for allegedly drugging and repeatedly raping his victim. The court of appeals affirmed his convictions. This appeal followed.

Jarvis argues that his conviction for first-degree criminal sexual conduct was unsupported by the evidence because causing someone to lose consciousness is not sufficient to establish that he caused a personal injury under Minn.Stat. § 609.342, subd. l(e)(ii) (2002). Jarvis also argues that the district court erred when it admitted into evidence an interview he gave to the police because the interview should have been recorded. We affirm the district court.

Jarvis and K.F. were employed at the same company and over the course of time they became friends. K.F. testified that Jarvis was someone she confided in about work, family, friends, and even problems in her marriage. In late 1998 or early 1999, Jarvis asked K.F. to work for his division at the company. They met on three separate occasions at a hotel to discuss the potential promotion. K.F. testified that none of these meetings resulted in any type of sexual conduct.

Around this same time, K.F. complained to Jarvis about feeling tired at work. Jarvis agreed that K.F. should take vitamins and began bringing vitamins in a plastic bag to work. K.F. took the vitamins provided by Jarvis without any adverse effect.

In the course of their friendship, K.F. confided in Jarvis that her goal was to become a model. Jarvis offered to make connections for K.F. with a so-called “friend” in the modeling business to further KF.’s goal. On February 15, 1999, Jarvis told K.F. that his contact in the modeling industry requested KF.’s portfolio. They agreed to meet the next day at a hotel so Jarvis could photograph K.F. in various outfits.

As agreed, K.F. met Jarvis at a hotel on February 16 at about 10:00 or 10:30 a.m. Before K.F. went into the bathroom to change, Jarvis stated “[w]e better not forget to take our vitamins,” and handed her a handful of pills. K.F. took the pills. She testified that the pills looked no different from the vitamins Jarvis had given her in the past. About ten minutes later, K.F. testified that Jarvis’s words began to get long, the room started to get blurry, and the last thing she remembered was the room becoming white.

K.F. testified that her next memory was hearing a door click and the sound of someone entering the room. She was “on the bed with nothing but a shirt on under some covers.” She testified that she felt

[disoriented. I was laying down, so I tried to get up, and it was like you couldn’t move your body. It was like you were just laying there trying to force yourself to get up; I couldn’t. I was confused. I still didn’t know what was going on. I was still pretty groggy.

She also testified that Jarvis got into bed with her and sexually penetrated her. She was amnesiac again for an unknown period of time. Eventually she was able to get up, collect her belongings, and leave the hotel. She started to drive home. She called her husband and told him that she had been drugged and raped and could not drive, and stopped at a weigh station to wait for him. Officer Eric Flood arrived at the weigh station at 5:80 p.m. and observed K.F. as being very confused, with slurred speech. Flood testified that K.F. appeared to be drunk and could hardly stand or move on her own.

KF. was admitted to St. Mary’s Hospital at 6:55 p.m. where she was examined by Dr. Daniel Campbell and nurse Kathryn Fast. Fast observed K.F. as being groggy, unsure of any events, and bewildered. Campbell testified that he believed K.F. had recently ingested barbiturates and concluded that she was amnesiac for six to seven hours during the day. Campbell’s conclusion was confirmed by a test result indicating the presence of barbiturates in KF.’s urine. He also testified that there was no other evidence that she was injured or had suffered trauma as a result of the rape. Dr. Campbell concluded to a reasonable degree of medical certainty that loss of consciousness from barbiturates is an impairment of a physical condition.

LaRae McPartlin, a forensic scientist from the Bureau of Criminal Apprehension, testified that KF.’s blood sample taken at the hospital tested positive for the presence of two distinct barbiturate drugs, amobarbital and secobarbital. Both of these drugs are sedative hypnotic drugs and are used to put people to sleep. McPartlin testified that when secobarbital becomes effective, it binds to cells in the brain and interferes with brain function. She further testified that if taken at a therapeutic level the barbiturates cause “divided attention impairment which would influence a person’s driving, * * * influ-encie] the person’s gait. [The individual] would appear to sort of stumble, incoherent.” If the amount of barbiturate ingested reaches a toxic level, the individual may lose consciousness, become comatose, or even die. The amount of barbiturates in the blood sample drawn from K.F. at approximately 9:00 p.m. on February 16, 1999, was “high to actually almost toxic.” McPartlin testified that if K.F. ingested the barbiturates at 10:00 a.m., during KF.’s amnesiac period the amount of barbiturates in her system would have been even higher and “into the toxic range.”

Jarvis testified on his own behalf and claimed that K.F. was the aggressor and the sex that occurred on the date in question was initiated by K.F. He denied drugging her.

Prior to trial, a suppression hearing was held to determine the admissibility of an officer’s summary of an interview Jarvis had with the police. The interview occurred on February 19, 1999, when four Duluth police officers went to Jarvis’s workplace to investigate the incident. After one of the officers explained that Jarvis was not under arrest and had no obligation to speak to the police, Jarvis agreed to accompany the officer to the police department and give an interview. The officer questioned Jarvis at the Duluth Police Department, first in an interview room and later in an office, but did not record the interview. Nor was Jarvis given a Miranda warning. Jarvis was not arrested that day and, in fact, a summons was not issued for another year.

The officer testified at the omnibus hearing that at no time during the February 19 interview did Jarvis communicate a desire to end the questioning or invoke his right to counsel. The officer also testified that the policy of the Duluth Police Department is not to record noncustodial interviews. Jarvis did not testify at the omnibus hearing. The district court denied Jarvis’s motion to suppress the interview with the police, ruling that it was noncustodial and, therefore, need not be recorded.

Jarvis appealed his conviction to the court of appeals on three grounds. He first contended that there was insufficient evidence to support his conviction because the state used the evidence that he had given the victim barbiturates to prove two different elements of the offense. See State v. Jarvis, 649 N.W.2d 186, 189 (Minn.App.2002). His second contention was that the district court should have suppressed his interview with the police because it should have been tape-recorded since it was custodial or, if not custodial, the interview was made in a place of detention where recording equipment was available. Id. Finally, Jarvis argued that he should receive a new trial because the prosecutor had committed serious misconduct. Id. The court of appeals affirmed, concluding that there was sufficient evidence to sustain the verdict, there was no requirement under State v. Scales, 518 N.W.2d 587 (Minn.1994), to record a noncustodial interview, and the prosecutor did not commit serious misconduct warranting a new trial. Id. at 196. Jarvis appealed, questioning the sufficiency of the evidence supporting his conviction and whether his interview should have been admitted. We granted review.

On an appeal on grounds of sufficiency of evidence, we view the evidence in favor of the state and assume that the jury believed all the state’s witnesses and disbelieved any evidence to the contrary. State v. Thames, 599 N.W.2d 122, 126-27 (Minn.1999). As such, the defendant bears a heavy burden to overturn a jury verdict. State v. Vick, 632 N.W.2d 676, 690 (Minn.2001).

Jarvis argues his conviction should be reversed because the evidence at trial did not support all three statutory elements of first-degree criminal sexual conduct. Under Minn.Stat. § 609.342, subd. 1(e), an individual is guilty of criminal sexual conduct in the first degree if a person “engages in sexual penetration with another person” and “causes personal injury to [another], and either of the following circumstances exist: (i) the actor uses force or coercion to accomplish sexual penetration; or (ii) the actor knows or has reason to know that [the victim] is mentally impaired, mentally incapacitated, or physically helpless.” Jarvis does not dispute the sufficiency of the evidence to establish the elements of sexual penetration or mental incapacity/physical helplessness. Rather, he asserts that the evidence is insufficient to establish “personal injury” under Minn.Stat. § 609.342, subd. 1(e).

“Personal injury” is defined as bodily harm, severe mental anguish, or pregnancy. Minn.Stat. § 609.341, subd. 8 (2002). “Bodily harm” is further defined as any “physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (2002) (emphasis added). We have not had occasion to address the type of evidence needed to support a finding of an “impairment of physical condition” as a type of bodily harm.

When interpreting a statute, the “words and phrases are construed according to the rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08 (2002), When the language is clear and unambiguous, we apply the plain meaning of the statute and must not engage in any further statutory construction. State v. Wukawitz, 662 N.W.2d 517, 525 (Minn.2003). “Impair” is defined as “to make or cause to become worse; diminish in ability, value, excellence, etc.; weaken or damage.” Random House Webster’s Unabridged Dictionary 959 (Wendalyn R. Nichols & Sheryl B. Stebbins eds., 2d ed. 2001). Therefore, according to its common usage and plain meaning, we conclude that the phrase “any impairment of physical condition” in Minn.Stat. § 609.02, subd. 7, means any injury that weakens or damages an individual’s physical condition.

The evidence amply supports the state’s claim that K.F.’s physical condition was weakened or damaged by an involuntary ingestion of drugs. Various individuals testified that after her meeting with Jarvis, K.F. was disoriented and groggy and could not get up or move her body without assistance. K.F. testified that she was amnesiac for a period of hours after taking the “vitamins” given to her by Jarvis. When she tried to get up from the bed before Jarvis sexually penetrated her, she was unable to move her body. The scientific evidence established that K.F. had ingested a potentially toxic amount of barbiturates capable of causing slurred speech, divided attention impairment, and impaired gait. Assuming the jury believed all the state’s witnesses and disbelieved any evidence to the contrary, K.F. involuntarily ingested a toxic amount of barbiturates that weakened or damaged her ability to move, remember, speak, drive, and generally function in a normal way. Under these facts we conclude that K.F.’s physical condition was sufficiently impaired by the ingestion of drugs as to satisfy the definition of bodily harm under Minn.Stat. § 609.02, subd. 7.

Our conclusion is consistent with cases in which we have examined the amount of physical pain or injury needed to support a finding of bodily harm under Minn.Stat. § 609.02, subd. 7. See State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967) (concluding that there was sufficient evidence to constitute “bodily harm” when the victim experienced pain from being struck); see also State v. Mattson, 376 N.W.2d 413, 415 (Minn.1985) (finding sufficient evidence of physical injury based on a bruise); State v. Bowser, 307 N.W.2d 778, 779 (Minn.1981) (concluding that sufficient evidence of personal injury existed when the victim felt considerable pain with sexual penetration and based on a laceration that resulted in bleeding). In the instant case, the evidence of impairment of physical condition exceeds the minimal amount of physical pain or injury we have found to satisfy the definition of “bodily harm” under MinmStat. § 609.02, subd. 7. Accordingly, we hold that the state presented sufficient evidence of bodily harm to establish personal injury under Minn. Stat. § 609.342, subd. 1(e).

Jarvis’s second contention is that the district court erred in admitting the police officer’s summary of the interview he gave in February of 1999. He argues this interview was important because, although it did not contain any admission of guilt, the interview was inconsistent with later statements by Jarvis, giving the jury reason to disbelieve his version of events. Although Jarvis argued at trial and before the court of appeals that the interview was given in a custodial setting, he now concedes that the interview was noncustodial and “asks this court to extend the holding of State v. Scales, 518 N.W.2d 587 (Minn.1994), to require recording of all interrogation at a place of detention, regardless of whether the interrogation is ‘custodial.’ ” We exercise de novo review of whether to extend the recording requirement. State v. Conger, 652 N.W.2d 704, 706 (Minn.2002).

We recently refused an invitation to extend Scales to noncustodial interrogations at police stations. Id. The Conger case involved a suspect who agreed to be interviewed at the police station in connection with a criminal sexual conduct investigation. See id. at 706. We concluded that “while many of the benefits of recording custodial interrogations would accrue to noncustodial interrogations, the interests of justice do not require that police record all noncustodial interrogations at this time.” Id. at 709. Jarvis presents no persuasive argument for extending recording to noncustodial interrogations; therefore, we decline to reconsider our decision in Conger and conclude the district court did not err when it admitted into evidence Jarvis’s interview.

Affirmed.

      . Jarvis also initially argued that the evidence was insufficient to sustain his conviction because evidence that he drugged K.F. could not be used to prove both the element of knowledge that K.F. was “mentally impaired, mentally incapacitated, or physically helpless” and the element of causing "personal injury.” He abandoned this position at oral argument.