author: BJORKMAN, Circuit Judge.

text:
    2007 SD 68
    TAK COMMUNICATIONS, Appellant, v. SOUTH DAKOTA UNEMPLOYMENT INSURANCE DIVISION, Appellee.
    No. 24343.
    Supreme Court of South Dakota.
    Considered on Briefs May 22, 2007.
    Decided July 11, 2007.
    Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, A. Stevenson Bogue of McGrath, North, Mul-lin & Kratz, Omaha, Nebraska, Attorneys for appellant.
    Shannon George-Larson, South Dakota Department of Labor Pierre, South Dakota, Robert B. Anderson of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee.
   BJORKMAN, Circuit Judge.

[¶ 1.] TAK Communications (TAK) appeals from the circuit court’s judgment affirming the Administrative Law Judge’s (ALJ) decision that Diana Dillman (Dill-man) and others similarly situated were employees of TAK, rendering TAK liable for contributions to the unemployment compensation fund based on their wages. We affirm.

FACTS

[¶ 2.] TAK is a South Dakota corporation which contracts with cable companies across the United States to perform their sales campaigns. In South Dakota TAK’s only client is Midcontinent Communications (Midco). Dillman began working for TAK in June 2004 after signing an Independent Contractor Agreement (Agreement) which TAK drafted. Prior to her work with TAK, Dillman, educated through the tenth grade, had always acted as an employee of others, never having owned or operated her own business. She came to TAK with no prior sales experience.

[¶ 3.] The Agreement, which Dillman contended she did not fully comprehend, provided that Dillman “is not and will not be considered an employee of TAK Communications, Inc. and that the relationship between [sic] and [Dillman] is on [sic] of principal-independent contractor rater [sic] than employer-employee.” In the Agreement, Dillman represented that as contractor she was “properly organized and validly existing under the laws of the State of South Dakota. Attached as Exhibit A is a copy of Contract’s [sic] certificate of organization or registration.” Despite this language, no Exhibit A was attached to the Agreement, Dillman established no such organization, and she executed the Agreement solely in her own name.

[¶ 4.] According to the Agreement, Dillman was to supply her own materials, provide her own insurance, set her own hours, and bear the risk of not earning any commission due to lack of sales. TAK provided Dillman with forms and sales materials to allow her to sell Midco products. It also provided her with a shirt and identification tag with Midco’s name on them, although Dillman was not required to wear either item. Dillman’s training consisted of accompanying other sales personnel to learn how to sell the product and she was provided guidance from a TAK representative on sales techniques. She was responsible for her own transportation, was to purchase her own peddler’s license for each municipality in which she sold, and was provided with “turf sheets” indicating areas in which to market the products.

[¶ 5.] While TAK allows its sales associates to operate other businesses independent of their relationship with TAK, and some of its sales associates did so, Dillman was not among them. Dillman had never obtained a sales tax license, either before, during, or after the time she sold for TAK. Apart from her relationship with TAK, Dillman had no sales experience prior to, during, or after the conclusion of her relationship with TAK. During the time Dill-man sold for TAK she never used a business name, did not advertise the sale of other products, and had no separate business premises. Dillman had no peddler’s license before TAK’s representative, Pam Boyden, ordered her to stop selling until she obtained one. When Dillman paid the fee and obtained the required license, it listed TAK Communications above Dill-man’s name and contained TAK’s address rather than Dillman’s.

[¶ 6.] In 2005 Dillman ceased selling for TAK. After her relationship with TAK ended, she eventually returned to work full time as an employee for another business. Following an investigation, the South Dakota Unemployment Insurance Division (Division) issued a determination notice concluding that Dillman was TAK’s employee, and that services she and others similarly situated provided to TAK were subject to the unemployment insurance laws. TAK appealed Division’s determination. The ALJ concluded that Dillman was free from TAK’s control in the performance of her service, however, she was not customarily engaged in an independently established trade, occupation, profession, or business, thus rendering her, and others similarly situated, TAK employees under SDCL 61-1-11. TAK appealed the ALJ’s decision to the circuit court.

[¶ 7.] The circuit court affirmed both of the ALJ’s determinations. TAK then appealed to this Court. Division did not file a notice of review as to the ALJ’s conclusion that Dillman was free from TAK’s control, leaving us with the sole issue of whether the circuit court erred in affirming the ALJ’s decision that Dillman was not customarily engaged in an independently established trade, occupation, profession, or business as provided in SDCL 61-1-11(2).

STANDARD OF REVIEW

[¶8.] Agency findings are subject to the same standard of review as circuit court findings. This Court must decide, in light of all the evidence, whether the findings are clearly erroneous. “If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.” Streeter v. Canton School Dist., 2004 SD 30, ¶ 14, 677 N.W.2d 221, 225. Whether an individual is an employee or an independent contractor raises a mixed question of law and fact; as such, it is “fully reviewable by this Court.” Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991) (citing Appeal of Hendrickson’s Health Care Service, 462 N.W.2d 655, 658 (S.D.1990)). We give no deference to the decision of either the ALJ or the circuit court. Midland Atlas Co., Inc. v. South Dakota Dep’t of Labor, 538 N.W.2d 232, 235 (S.D.1995).

DECISION

[¶ 9.] Resolution of this appeal is controlled by SDCL 61-1-11. That statute provides:

Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the Department of Labor that:
(1) The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and
(2) The individual is customarily engaged in an independently established trade, occupation, profession, or business.

SDCL 61-1-11. The burden initially lies with Division to prove that Dillman provided services to TAK for wages. Midland Atlas Co. Inc., 538 N.W.2d at 235. Wages are defined by SDCL 61-1-1(17) as: “all remuneration paid for services, including commissions and bonuses.”

[¶ 10.] TAK acknowledges that it paid Dillman wages in the form of commissions. Thus, the burden shifts to TAK to prove that Dillman met both elements of SDCL 61-1-11. Midland Atlas Co. Inc., 538 N.W.2d at 235. Because Division does not seek review of the determination that Dill-man was free from TAK’s control over the performance of her work, the question of Dillman’s status turns on whether at the time in question she was “customarily engaged in an independently established trade, occupation, profession, or business” pursuant to SDCL 61-1-11(2).

[¶ 11.] We have previously defined the terms employed in this provision:

The adverb ‘independently’ clearly modifies the word ‘established’, and must carry the meaning that the trade, occupation, profession or business was established, independently of the employer or the rendering of the personal service forming the basis of the claim. The present tense ‘is’ indicates the individual must be engaged in such independent activity at the time of rendering the service involved. ‘Customarily’ means usually, habitually, regularly. The language used contemplates that one engaged in an independently established trade, occupation, profession or business has a proprietary interest therein to the extent that he can operate it without hindrance from any individual whatsoever. An established business is one that is permanent, fixed, stable and lasting.

South Dakota Dep’t of Labor v. Tri State Insulation Co., 315 N.W.2d 315, 316 (S.D.1982) (citing Vermont Securities v. Vermont Unemployment Comp. Comm’n, 118 Vt. 196, 104 A.2d 915, 917 (1954) (internal citations omitted)).

[¶ 12.] We have addressed this issue in a variety of contexts, including several actions involving salespersons. See, e.g., Moonlight Rose Co. v. South Dakota Unemployment Ins. Div., 2003 SD 96, 668 N.W.2d 304 (affirming circuit court’s determination that rose salespersons were employees rather than independent contractors); Lake Preston Housing Corp. v. South Dakota Dep’t of Labor, 1999 SD 5, 587 N.W.2d 736 (affirming circuit court’s determination that a property manager was an employee rather than an independent contractor); Unemployment Liability of Shoppers Guide v. South Dakota Dep’t of Labor, Unemployment Ins. Div., 1996 SD 92, 551 N.W.2d 584 (reversing circuit court’s determination that newspaper carriers were employees rather than independent contractors); Midland Atlas Co., Inc. 538 N.W.2d at 236 (reversing circuit court’s determination that Atlas sales representatives were employees rather than independent contractors); Appeal of HendHckson’s Health Care Serv., 462 N.W.2d at 655 (affirming circuit court’s determination that nurses and nurse’s aides who provided in-home health care to business clients were employees); Miller Liquid Feeds v. South Dakota Dep’t of Labor, Unemployment Ins. Div., 340 N.W.2d 185 (S.D.1983)(affirming circuit court’s determination that a corporation’s salesmen were employees rather than independent contractors); Tri State Insulation Co., 315 N.W.2d at 319 (affirming circuit court’s determination that salesmen were independent contractors rather than employees).

[¶ 13.] Our holdings in these cases demonstrate that: “In determining whether an individual is an employee or an independent contractor, each case must be determined on its own facts and all the features of the relationship are to be considered.” Egemo, 470 N.W.2d at 820. In Moonlight Rose Co., we set forth a four prong test to determine whether a relationship fits within the meaning of SDCL 61-1-11(2). Under that test, TAK must show that Dillman:

(1) was engaged in an enterprise that was created and exists apart from her relationship with TAK and that the enterprise would survive the termination of that relationship;
(2) has a proprietary interest in the enterprise to the extent that she can operate without hindrance from any other individual;
(3) due to her skill, is engaged in an economic enterprise such that she bears the risk of unemployment; and
(4) remains employed as a function of market forces and the demand for her skills, rather than the response of an employer to similar economic realities.
All four prongs of this test ... require that the individual have some relationship with an economic enterprise that is independent of the relationship with the company that is allegedly subject to unemployment insurance taxation.

Moonlight Rose Company, 2003 SD 96, ¶ 17, 668 N.W.2d at 310. Under the facts of this case, Dillman was not customarily engaged in an enterprise independent of the relationship with TAK, thus rendering her employment subject to this title. Because we conclude that TAK has failed to meet the first prong of the test, we need not address the others.

[¶ 14.] The ALJ’s findings, which TAK does not dispute, indicate Dillman had never been considered an independent contractor, nor had she owned or operated her own business outside of her relationship with TAK. Dillman never obtained a sales tax license. Outside of her relationship with TAK, Dillman had no sales experience prior to, during, or after the conclusion of her relationship with TAK. The record also indicates that during the time Dillman sold for TAK she never used a business name, did not advertise for the sale of other products and had no separate business premises. Dillman also had no peddler’s license until TAK’s representative ordered her to stop selling until she obtained one. Even then, the license contained TAK’s name above Dillman’s own, and TAK’s address rather than Dillman’s.

[¶ 15.] The facts of this case most closely resemble those in Appeal of Hendrickson’s Health Care Serv.; Lake Preston Housing Corp.; and Moonlight Rose Co. In each case, none of the salespersons held themselves out as proprietors of an independent business by having a sales tax license, business cards, a separate business premises or phone listing. In each of those cases, no evidence existed indicating that the salespersons sold products independently of the relationship in question. Additionally, in Moonlight Rose Co., each peddler’s license similarly listed Moonlight Rose Company. 2003 SD 96, ¶ 20, 668 N.W.2d at 311. Lacking sales tax and peddler’s licenses in her own name, Dill-man could not lawfully engage in sales for others as an independent contractor.

[¶ 16.] TAK directs us to our decisions in Tri State Insulation Co. and Midland Atlas Co. Inc., both cases involving salespersons, to support its position. It points to our language in Tri State Insulation Co. that those in sales need “little more than an automobile and a ballpoint pen” to operate as independent contractors. 315 N.W.2d at 317. While true, the statement provides paltry aid in resolving whether Dillman was customarily engaged in an enterprise independent of her relationship with TAK. Unlike Tri State Insulation Co., where we concluded that were the salesmen not “selling Tri State’s products surely they would be engaged in selling those of someone else,” the facts here indicate the contrary — that Dillman had never — either before, during or after her relationship with TAK — similarly engaged herself, nor established a business entity through which to do so. Id. at 318. In Midland Atlas Co., Inc., we reviewed the status of five sales representatives. 538 N.W.2d at 235. Four held themselves out as engaged in an enterprise independent of Midland. Id. at 236. The fifth did not sell for other companies. Id. There we noted that the fact the remaining sales representative chose to sell only for Midland did not, in itself, mean he had no independently established trade. Id. Our holding in Midland Atlas Co., Inc., did not, as TAK suggests, prohibit the agency from concluding that some of its salespeople are employees and others independent contractors. Our decision there merely reflected our conclusion that the ALJ mistakenly applied facts concerning the issue of control to the issue of independent calling.

[¶ 17.] In each case where wages are paid, the test is whether both elements of SDCL 61-1-11 are met. Under the second element of the statute, the issue is not whether TAK’s salespersons generally were free under the terms of the agreement to sell for others, but whether the individual in question actually was “customarily engaged in an independently established trade, occupation or business.” Under these facts, TAK simply did not meet its burden to establish that Dillman and others similarly situated were so engaged.

[¶ 18.] The decision of the trial court is affirmed.

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

[¶ 20.] B JORKMAN, Circuit Judge, for SABERS, Justice, disqualified.


source: Caselaw Access Project

author: MYREN, Circuit Judge.

license: Public Domain

text:
    2007 SD 73
    Tyra HENDRIX, Plaintiff and Appellant, v. Kenneth SCHULTE, Defendant and Appellee.
    No. 23973.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2007.
    Decided July 18, 2007.

      Michael D. Bornitz and Onna B. Houck of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Daniel R. Fritz and Nicole Nachtigal Emerson of Lynn, Jackson, Shultz & Le-brun, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   MYREN, Circuit Judge.

[¶ 1.] Tyra Hendrix (Hendrix) appeals the circuit court’s order granting summary judgment in favor of Robert Schulte (Schulte), her landlord. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Schulte owned residential rental property in Minnehaha County. Hendrix and her family rented a house from Schulte with assistance from the federal government’s Section 8 housing program. In March 2002 Hendrix fell while on the stairs in the house she rented from Schulte.

[¶ 3.] The rental house was constructed in the 1930s. There was no evidence that a building permit or permit for additions, alterations, or repairs was ever issued for the house. There was no evidence that any additions, alterations, or repairs requiring a permit were ever undertaken on the house.

[¶ 4.] The stairway did not have a handrail at the time Hendrix rented the property. There was no evidence that the stairway had ever had a handrail.

[¶ 5.] Hendrix sued Schulte based on her claim that he had a duty to “maintain the premises in a reasonably safe condition.” She alleged that he violated that duty by failing to install a handrail on the staircase. She also alleged that failure to install a handrail was negligence per se because it “violated § R315.1 of the Residential Code” of the City of Sioux Falls. She claimed that she fell on the stairs and suffered injuries as a result of Schulte’s negligence. Schulte denied the allegations.

[¶ 6.] Schulte filed a motion for summary judgment with supporting affidavits. Hendrix opposed the motion and filed opposing affidavits. The circuit court granted Schulte’s motion for summary judgment. Hendrix filed a timely appeal.

STANDARD OF REVIEW

Our standard of review on summary judgment requires this Court to determine whether the moving party has
demonstrated the absence of any genuine issue of material fact and entitlement to judgment on the merits as a matter of law. SDCL 15-6-56(c). The circuit court’s conclusions of law are reviewed de novo. Titus v. Chapman, 2004 SD 106, ¶ 13, 687 N.W.2d 918, 923 (citing Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771)). However, all facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). We will affirm the circuit court’s ruling on a motion for summary judgment when any basis exists to supports its ruling. Westfield Ins. Co., Inc. v. Rowe, 2001 SD 87, ¶ 4, 631 N.W.2d 175, 176 (citing Estate of Juhnke v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732).

Weitzel v. Sioux Valley Heart Partners, 2006 SD 45, ¶ 16, 714 N.W.2d 884, 891.

ANALYSIS

[¶ 7.] “In order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.” Fisher Sand & Gravel Co. v. South Dakota Dept. of Transportation, 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867. This case turns on the question of whether Schulte had any duty to protect Hendrix from injury. Kuehl v. Horner Lumber Co., 2004 SD 48, 678 N.W.2d 809. A duty can be created by statute or common law. Id.

[¶ 8.] As a general rule, the existence of a duty is to be determined by the court. Erickson v. Lavielle, 368 N.W.2d 624 (S.D.1985). Summary judgment in a negligence case is appropriate when the trial judge resolves the duty question in the defendant’s favor. Id.; Bland v. Davison County, 507 N.W.2d 80 (S.D.1993).

1. Landlord duties under common law

[¶ 9.] The general rule under the common law is that the owner of a building who has leased that building to another, without any agreement to repair, is not liable to a tenant or to his invitees for injuries sustained by reason of its unsafe condition. Boe v. Healy, 84 S.D. 155, 168 N.W.2d 710 (1969). Similarly, once a landlord has parted with full possession of the premises to the tenant, the general rule is that the landlord is not liable for injury to third persons caused by the tenant’s negligence. Clauson v. Kempffer, 477 N.W.2d 257 (S.D.1991). When setting forth that general rule in Clauson, this Court quoted approvingly from the Restatement (Second) of Torts § 355. This Court then discussed the various exceptions to that general rule that are itemized in the Restatement (Second) of Torts §§ 357-362. This Court has also applied other common law general rules and exceptions outlined in the Restatement (Second) of Torts. See Walther v. KPKA Meadowlands, Ltd., 1998 SD 78, 581 N.W.2d 527; Smith v. Lagow Construction & Developing Co., 2002 SD 37, 642 N.W.2d 187 (both cases dealing with landlords’ duties to protect against unlawful acts of third parties).

[¶ 10.] This Court has not specifically utilized the Restatement (Second) of Torts § 356 (1965) in any prior decisions. Section 356 explains that a “lessor of land is not liable to his lessee ... for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.” After reviewing the case law, the circuit court correctly concluded that this Court would utilize § 356 in an appropriate case.

[¶ 11.] It was undisputed that the stairwell did not contain a handrail at the time Hendrix took possession, and that it was in the same condition when Hendrix fell. Under the analysis of the general rule in § 356, Schulte is not liable for a dangerous condition that existed when Hendrix took possession. However, the necessary analysis does not end with § 356. The harshness of that general rule is moderated in certain specific circumstances that are outlined in the exception sections, §§ 357-362.

[¶ 12.] Restatement (Second) of Torts § 357 (1965) provides one such exception. It reads:

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if:
a. the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
b. the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
c. the lessor fails to exercise reasonable care to perform his contract.

[¶ 13.] The lease between Schulte and Hendrix provided:

Owner shall respond in a reasonable time to calls by the Family for services consistent with the obligations under the Lease and maintain the dwelling unit, equipment, common areas, and facilities provided for the use and benefit of the Family in compliance with applicable Housing Quality Standards.

[¶ 14.] Section 357 contains a narrow exception to the general rule of non-liability. As such, it should be applied precisely. It does not impose a sweeping obligation upon a landlord to eliminate all potential dangers. Such an obligation would have the exception swallow the rule. Instead, it imposes liability only when there is a “condition of disrepair.” The circuit court’s decision correctly focused on this narrow language.

[¶ 15.] It was undisputed that no handrail had ever been installed in the stairway in question. Thus, there was no “disrepair.” This was not a situation where a handrail was damaged and not repaired. This was a situation where a handrail was never installed. To require a landlord to install a handrail that never existed would take the exception beyond its limited scope.

[¶ 16.] Hendrix asks this Court to abandon the common law as outlined in its prior case law and the Restatement. Hendrix contends that this is necessary because public policy requires the Court to protect the interests of tenants who are in an unequal bargaining position with landlords. However, those concerns were the very purpose for the exceptions in §§ 357-362 as explained in the official comments to those sections.

[¶ 17.] Hendrix asks this Court to require all landlords to maintain all rental property in a reasonably safe condition regardless of possession. The public policy concerns raised by Hendrix are already addressed by the exceptions set forth in

the Restatement. We decline the invitation to abandon the common law formulations.

2. Landlord duties under statute or ordinance

The violation of a statute or ordinance, designed for the benefit of individuals, is of itself sufficient to prove such a breach of duty as will sustain an action for negligence brought by a person within the protected class if other elements of negligence concur. The statute or ordinance becomes the standard of care or the rule of the ordinarily careful and prudent person.

McCleod v. Tri-State Milling Co., 71 S.D. 362, 366-367, 24 N.W.2d 485, 487 (1946). See also, Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974); Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962).

[¶ 18.] Hendrix claimed numerous sources of statutory duty before the circuit court. In its memorandum decision the circuit court addressed each of her claimed sources of duty. Hendrix has not asked this Court to review the circuit court’s decisions regarding all of the potential sources of statutory duty that she raised. Instead, she has asked this Court to consider only two of those potential sources of statutory duty. We will confine our review to those two sources.

[¶ 19.] First, Hendrix contends that her lease with Schulte obligated him to bring his property into compliance with the federal regulations regarding the Section 8 program. The actual language of that lease is quoted earlier in this decision. The lease required him to “make repairs necessary to maintain” the property in compliance with “applicable Housing Quality Standards.”

[¶ 20.] The “Housing Quality Standards” are set forth at 24 CFR § 982.401. Each rental property must meet “performance requirements” and “acceptability criteria.” Stairs are covered under subsection (g) which relates to “Structure and materials.” The “performance requirements” explain that:

[t]he dwelling unit must be structurally sound. The structure must not present any threat to the health and safety of the occupants and must protect the occupants from the environment.

The “acceptability criteria” explain that:

[t]he condition and equipment of interior and exterior stairs, halls, porches, walkways, etc., must not present a danger of tripping and falling. For example, broken or missing steps or loose boards are unacceptable.

[¶ 21.] Rick Kruse inspected the house on January 11, 2002, less than two months before Hendrix’s accident. Kruse is an evaluator with the Sioux Falls Housing and Redevelopment Commission, the federal government’s Section 8 inspector. In an inspection letter provided to both Schulte and Hendrix, Kruse determined that the house “was found to meet HUD’s Housing Quality Standards.” (emphasis added). His letter included a list of three items “you should be aware of.” Item number two was, “repair, or replace, the second floor stairs handrail.” Schulte was not required to address the items on the list in order for the property to meet the Housing Quality Standards. Instead, the inspection form noted that those comments were intended to:

(a) establish the precondition of the unit, (b) indicate possible additional areas to negotiate with the owner, (c) aid in assessing the reasonableness of the rent of the unit, and (d) aid the tenant in deciding among possible units to be rented. The tenant is responsible for deciding whether he or she finds these conditions acceptable.

[¶ 22.] If stairs were broken, Schulte was obligated to replace them. If a handrail was broken or removed, Schulte was obligated to replace it. Neither the “performance requirements” nor the “acceptability criteria” required Schulte to install a handrail where one had never existed.

[¶ 23.] Second, Hendrix relies on a Sioux Falls ordinance that adopted the International Residential Code (IRC). By its own terms, existing structures need not comply with the IRC except under very specific circumstances. Section R102.7 of the IRC provides:

The legal occupancy of any structure existing on the date of adoption of this code shall be permitted to continue without change, except as specifically covered in this code, the International Property Maintenance Code or the International Fire Code, or as is deemed necessary by the building official for the general safety and welfare of the occupants and the public, (emphasis added).

Section R102.7.1 of the IRC reads:

Additions, alterations, or repairs to any structure shall conform to that required for a new structure without requiring the existing structure to comply with all of the requirements of this code, unless otherwise stated.

[¶ 24.] It was undisputed that this house was constructed in the 1930s. There was no evidence of any permit for additions, alterations, or repairs at any point in time. There was no evidence that tended to show that the house had ever been subject to any additions, alterations, or repairs that would have triggered IRC § R102.7.1.

[¶25.] Section R103.1 of the IRC defines “building official” as the official in charge of the department of building safety for the City of Sioux Falls. That person was Ron Bell. There was no evidence that Ron Bell, or anyone working for him, ever inspected the house or received any complaints about the house. There was no evidence that Ron Bell, or anyone working for him, ever “deemed it necessary” for Schulte to bring this house into compliance with the requirements of the IRC.

[¶ 26.] There were no material issues of fact in dispute regarding duty. Based on the undisputed facts, the circuit court correctly concluded that Hendrix did not establish any statutory or common law duty that required Schulte to install a handrail where none had been previously installed.

[¶27.] We affirm.

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

[¶ 29.] MYREN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 30.] ZINTER, Justice, disqualified.

      . In Boe, this Court noted that the general rule does not apply where the owner reserves control of a portion of the premises for use in common. This Court utilized the Restatement (Second) of Torts § 361 to explain the standard of care a landlord must apply to the portion of the property over which the landlord retains control. This case does not involve any allegations of the reservation of common areas.


author: KONENKAMP, Justice. SABERS, Justice

text:
    2007 SD 75
    STATE of South Dakota, Plaintiff and Appellee, v. Fred PACKED, Jr., Defendant and Appellant.
    No. 24040.
    Supreme Court of South Dakota.
    Argued April 24, 2007.
    Decided July 18, 2007.

      Lawrence E. Long, Attorney General and Frank Geaghan, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
    Timothy J. Rensch, Rensch Law Office, APLC, Rapid City, SD, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was convicted in a jury trial of first degree rape and sexual contact with a child who lived in his home. He was sentenced to life plus twenty-five years. Because we conclude that several trial errors deprived him of a fair trial, we reverse and remand for a new trial.

Background

[¶ 2.] E.S.B., who was eight at the time of the incidents in question, lived with Shanna and Fred Packed, Jr. (defendant). The child referred to them as “mom” and “dad,” but Shanna is actually E.S.B.’s maternal grandmother. According to Shanna, E.S.B.’s natural mother, Betty Du-Bray, and natural father, Gordon DuBray, “didn’t want her,” and so the child moved in with Shanna when she was two. In the summer of 2003, Shanna, defendant, and E.S.B. lived in a brown house in Martin, South Dakota. Her natural mother and father lived at Sunrise Housing Addition, several miles away.

[¶ 3.] Around June 6, 2003, Shanna was hospitalized in Rapid City, South Dakota with a broken jaw. According to Shanna, defendant drove her to Rapid City. Shanna recounted that while she was in the hospital, defendant was E.S.B.’s primary caretaker. During this same time, defendant said he was working two jobs. When Shanna returned from the hospital, she noticed some blood in E.S.B.’s underwear and questioned her about it. E.S.B. denied that anything had happened to her and said that the underwear belonged to her sister. Shanna did nothing further.

[¶ 4.] Later that summer or early fall, Shanna, defendant, and E.S.B. moved into a blue house in Sunrise Housing Addition. They were now living close to E.S.B.’s natural mother, Betty. In September 2003, Shanna and Betty noticed “a light green stain” on E.S.B.’s underwear. She and Betty questioned E.S.B. about it. According to Shanna, Betty angrily asked E.S.B. who had been messing around with her. When E.S.B. gave no response, Betty asked if “Gordon” or “Fred” had been messing around with her, to which E.S.B. replied that Fred (defendant) had. According to Betty, she did not do anything with this information, except leave the room upset.

[¶ 5.] In January 2004, the Department of Social Services (DSS) received a report about alleged abuse of E.S.B. A social worker investigated by first speaking with E.S.B. at her school in Allen, South Dakota. E.S.B. was in the third grade. She told the DSS worker that defendant had touched her sometime between Halloween and Thanksgiving and her mom, Shanna, had found baby oil when they moved. She also told the social worker that her younger sister was there and saw it all happen. Although the authorities first thought E.S.B. was describing abuse that had occurred recently, they later realized that E.S.B. was speaking about an incident of improper touching that had happened while she was living in the brown house the previous summer.

[¶ 6.] Law enforcement officers continued their investigation. They spoke with Shanna and attempted to collect the underwear and baby oil as evidence. The underwear had been washed, but Shanna gave it to them anyway. She also gave them the bottle of baby oil. Shanna told the officers that when she noticed the stain in the underwear she told defendant about it and he told her to take E.S.B. to the doctor. Shanna also told the authorities about a neighbor boy who had called her, swore at her, and said rude things to her, all while claiming he was E.S.B.’s boyfriend. Sheriff John Walker gave the information about the neighbor boy, D.H., to Martin City Police Chief Shane Valendra. Nothing else was done with regard to this information by Sheriff Walker or Police Chief Valendra.

[¶ 7.] Police Chief Valendra and Sheriff Walker took E.S.B. and her younger sister to Rapid City for a forensic interview and medical examination. Lora Hawkins conducted a forensic interview of E.S.B. and Dr. Lori Strong, a pediatrician specializing in the field of child abuse, examined her. The videotape recording of E.S.B.’s interview shows a shy and reticent child, who volunteered little information. Each bit of detail about the incidents had to be painstakingly obtained with careful, age-appropriate questions. The interview lasted approximately forty-five minutes. When the questions centered on inconsequential activities, E.S.B. answered without reluctance. However, when questioned about defendant and inappropriate touching, E.S.B.’s demeanor noticeably changed. Her answers were reserved and given in a low voice.

[¶ 8.] E.S.B. told Hawkins that defendant had touched her four times in her room in the brown house while her mom was in the hospital. She also said that he touched her “peaches” with his hand. Later during the interview she said that defendant had laid on top of her with her pants down and touched her “peaches” with his “hot dog.” This was after E.S.B. repeatedly stated that her pants were up, as were his, and that he never went inside her underwear. During the interview, Hawkins left to speak with Sheriff Walker and Police Chief Valendra to see if there was anything they wanted her to explore. When she returned, she questioned E.S.B. about the baby oil and whether her younger sister was in the room when the touching occurred. E.S.B. denied that her younger sister was there and had no information about the baby oil. Nothing was asked of her about D.H., the neighbor boy.

[¶ 9.] Defendant was indicted on charges of first degree rape of a child under ten and sexual contact with a child under sixteen “on or between June, 2003 and January 6, 2004.” Defendant moved for a bill of particulars, which was granted. The State filed the bill limiting the time of the alleged offense to “on or between June 6-11, 2003.” At trial, upon motion of the defense, the time frame was further limited to “on or between June 6-9, 2003.” When the indictment was read to the jury, the State agreed to modify the time frame to comply with the agreed dates. Also, in the court’s preliminary jury instructions, the dates recited were “on or between June 6-9, 2003.”

[¶ 10.] Before trial, the State moved in limine to preclude defendant from presenting evidence of a third-party perpetrator. Defense counsel responded that what he intended to introduce was not necessarily third-party perpetrator evidence. He intended to cross examine Shanna, Sheriff Walker, and E.S.B. about the neighbor boy, D.H., and how Shanna and Betty had concerns about E.S.B. “running around” with him. This line of questioning, counsel asserted, supported his theory of the defense that E.S.B. was fabricating the allegations against defendant to avoid getting in trouble for having a boyfriend. The court granted the State’s motion in limine, concluding that nothing linked D.H. to the alleged crimes, and thus, as third-party perpetrator evidence, it was inadmissible.

[¶ 11.] While testifying at trial, E.S.B. was even more reticent than when she was interviewed by the forensic interviewer. On a number of occasions, the State had to repeat its questions before she would respond. On the specifics of the rape charge, she said that while her underwear was down and defendant’s pants and underwear were down, defendant touched her “middle” with his “middle.” Shanna and Betty also testified. They described how they found the stains in E.S.B.’s underwear and questioned her about it. Shanna was asked about D.H. by defense counsel in an offer of proof outside the presence of the jury. She acknowledged that she had concerns. Betty admitted to angrily questioning E.S.B. with Shanna there.

[¶ 12.] Sheriff Walker testified that he felt Shanna was uncooperative during the investigation. He believed that she was attempting to protect defendant. Again outside the presence of the jury, defense counsel asked Sheriff Walker whether one of the reasons he believed Shanna was uncooperative was because she mentioned that D.H. claimed to be E.S.B.’s boyfriend. Sheriff Walker agreed that such contributed to his opinion, but that there were other factors.

[¶ 13.] Dr. Strong told the jury that E.S.B.’s examination was normal. However, she explained that the majority of children who are sexually abused have normal physical examinations. She testified that it would not be unusual to see such reluctance in testifying for a child of E.S.B.’s age. Forensic examiner Hawkins testified about her interview and how in her opinion E.S.B. was molested at least twice, even though she claimed to have been touched four times. Hawkins explained that she believed E.S.B.s’ revelation was not a “purposeful disclosure.” E.S.B., according to Hawkins, loved defendant and “it is hard to separate the person from the actions sometimes.” The video from her interview with E.S.B. was played for the jury.

[¶ 14.] Defendant presented the testimony of his previous attorney, Alvin Pahlke. Apparently, Shanna had taken E.S.B. to see Pahlke for a private interview during the time he was representing defendant. Pahlke testified that E.S.B. told him that defendant did not touch her “peaches” and she wanted him to come home.

[¶ 15.] In its final instructions to the jury, the court included an instruction, over defendant’s objection, stating that although “[t]he Indictment charges that the offense was committed ‘on or between’ a certain date[,] ... [i]t is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.”

[¶ 16.] Defendant was found guilty of both charges, admitted to being a habitual offender, and was sentenced to life plus twenty-five years. He appeals asserting that (1) he was improperly prevented from pursuing evidence of his theory of the defense; (2) the court erred when it used the “on or about” instruction; (3) there was insufficient evidence of penetration to support the rape conviction; (4) Sheriff Walker was improperly permitted to testify that a victim’s statements are likely to change during the course of an investigation; and (5) the court erred when it allowed certain testimony of the forensic interviewer.

Standard of Review

[¶ 17.] Decisions to admit or deny evidence are reviewed under the abuse of discretion standard. Steffen v. Schwan’s Sales Enterprises, Inc., 2006 SD 41, ¶ 19, 713 N.W.2d 614, 621 (citations omitted). For jury instructions, the following is our standard of review:

A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard. See Luke v. Deal, 2005 SD 6, ¶ 11, 692 N.W.2d 165, 168; Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 115-16. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions: to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial. First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citations omitted).

Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615. “The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo.” State v. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d 201, 206 (citing United States v. Staula, 80 F.3d 596, 604 (lstCir.1996)).

Analysis and Decision

1. Theory of the Defense

[¶ 18.] Defendant asserts that “the third-party perpetrator ruling was misapplied in contravention of the rules of evidence in such a way as to disallow the presentation of a complete defense theory and to violate rights of confrontation.” When the court prevented the defense from inquiring into whether E.S.B. fabricated the allegations because of her supposed relationship with a neighbor boy, its ruling was based on its belief that defendant was attempting to offer evidence of a third-party perpetrator. Defendant maintains that while the evidence was construed as third-party perpetrator evidence, it was, in fact, evidence establishing his defense. In pursuit of this defense, defendant argues that he had the right to cross examine Shanna, Betty, Sheriff Walker, and E.S.B. about the neighbor boy.

[¶ 19.] In regard to Sheriff Walker, defendant claimed that the State opened the door on the neighbor boy issue when it inquired into why the sheriff believed Shanna was not cooperative during the investigation. The court prohibited defendant from engaging in this line of questioning. In making his offer of proof, defendant elicited the following testimony from Sheriff Walker:

Q: Sir, on cross-examination, we were talking a little bit about the matter that you felt that Shanna Packed was misleading you on. I’m looking at page five of five of your report, where there is a statement about [D.H.].
A: Yes.
Q: Is that what you were talking about?
A: That was one of the incidents, but I don’t recall specifically when you were asking the question. Now that you brought it to my attention, yes, that is one of the incidents.
Q: What was it she said to you that you felt was misleading?
A: I felt that she was trying to lead me away from Mr. Packed in the investigation. And point blame to, on a — this young man.
Q: Okay. And tell the [c]ourt what she said in that regard.
A: She said that he had called, [D.H.] had called her, and that he said that he was her boyfriend. And that he called her a fat bitch on the phone.
Q: Okay, and what did you say immediately before, which caused her to say that?
A: Can I look at my—
Q: Please.
A: The only other people that would be taking care of Shanna [sic], I asked her who all would be taking care of Shanna [sic],
Q: Okay.
A: And she said the only other people would be Shanna’s [sic] mother and father.
Q: You mean [E.S.B.]’s?
A: [E.S.B.]’s mother and father.
Q: Which would be Betty and Gordon.
A: Gordon, yeah.
Q: It was after that then, she was telling you the story about the neighborhood boy?
A: Yeah, she went right into the story about the neighbor boy.
Q: And you felt that was [a] reference to the stains in the panties, is that correct?
A: I felt that — -I had been talking to her about the panties and about Mr. Packed, and she wanted — I felt she was leading me to think that somebody else may have had contact with her, and that [E.S.B.] had this boyfriend, this [D.H.].
Q: Say that last part again, I didn’t hear you.
A: I felt that she was trying to point me in the direction of another suspect in the investigation. Which would be this young boy [D.H.].
Q: Did you take any steps to track this boy down?
A: The information was given to Chief Valendra, because it was in Martin, and he said he was going to conduct a followup investigation. So he would have been given that information.
Q: All right. So you didn’t do anything more in that regard?
A: I don’t recall if I did when I got back, other than told Chief Valendra.
Q: And just so we are clear, when you said, on direct, that she was in denial and misleading me at times, you were referring in part to this [D.H.] situation?
A: That, and also when we were discussing the panties, she initially told me that she didn’t know anything about it and demanded that I tell her who made these allegations, and she turned around and told me that she has seen this green substances in the panties.

The court did not allow defendant to introduce this evidence, concluding that it would violate its previous ruling on third-party perpetrator evidence. However, the State was permitted to inquire into how Shanna was uncooperative during the investigation.

[¶20.] In holding to its ruling, the court also limited defendant’s inquiry of Shanna and her concerns about D.H. Shanna had previously said that when Betty angrily questioned E.S.B. about the underwear there were concerns about her “running around” with D.H. This information, according to defendant, supported his theory that E.S.B. was motivated to blame defendant because she “was worried about her elders interfering with her relationship with a boyfriend[.]” Defendant believes that he should have been allowed to question E.S.B. about “whether or not she was making the story up to deflect possible trouble at the time her elders questioned her about a stain in her panties.” Allowing cross examination of the witnesses on this subject, defendant asserts, could establish a “justification for the victim to lie about the allegations, could give context to the statements of the alleged victim, and could show reasons other than sexual molestation for claims made.”

[¶ 21.] In response to these arguments, the State contends that the court properly excluded this evidence because there was nothing linking D.H. to the crimes charged and, therefore, the evidence was “highly unreliable” and of “little probative value.” The State further asserts that the door was not opened during Sheriff Walker’s testimony on why he believed Shanna was being uncooperative because Sheriff Walker had other reasons for finding her uncooperative. Regardless of whether the state opened the line of inquiry with its questions of Sheriff Walker, we think the court erred in restricting cross examination on the neighbor boy.

[¶ 22.] At the outset, we must emphasize that there is no special rule in South Dakota dealing solely with third-party perpetrator evidence. Relevant evidence is admissible; irrelevant evidence is inadmissible, subject to the considerations of SDCL 19-12-3 (Rule 403). SDCL 19-12-2 (Rule 402). Labeling an offer “third-party perpetrator” evidence will not automatically exclude it. When third party perpetrator evidence is challenged as unfairly prejudicial, confusing, or misleading, trial courts are required to apply, on the record, the probative versus prejudicial balancing test of SDCL 19-12-3 (Rule 403) in deciding to admit or exclude such evidence. See State v. Jenner, 451 N.W.2d 710, 722 (S.D.1990); State v. Braddock, 452 N.W.2d 785, 789-90 (S.D.1990).

[¶ 23.] More to the point here, however, it must be recognized that there is a distinction between evidence offered to prove the guilt of another uncharged individual and evidence offered to show that a witness has a motivation to accuse the wrong person. To deny without rational basis evidence of the latter contravenes a defendant’s due process rights. In Davis v. Alaska, the United States Supreme Court explained:

A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940 at 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (citing Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959)). “[D]ue process is in essence the right of a fair opportunity to defend against the accusations. State evidentiary rules may not be applied mechanistically to defeat the ends of justice.” State v. Luna, 378 N.W.2d 229, 233 (S.D.1985) (citing Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)); see also Holmes v. South Carolina, 547 U.S. 319, 321, 126 S.Ct. 1727, 1731-32, 164 L.Ed.2d 503 (2006).

[¶ 24.] We afford broad discretion to the court in deciding whether to admit or exclude evidence. Steffen, 2006 SD 41, ¶ 19, 713 N.W.2d at 621 (citations omitted). However, “[w]hen a trial court misapplies a rule of evidence, as opposed to merely allowing or refusing questionable evidence, it abuses its discretion.” State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). By considering the relevancy of defendant’s proposed cross examination to his defense and then not weighing the probative value of this evidence against its prejudicial impact, the court misapplied SDCL 19-12-2 (Rule 402) and SDCL 19-12-3 (Rule 403). The court simply concluded that defendant was attempting to offer evidence of a third-party perpetrator and excluded any reference by defendant to D.H. for any purpose. Completely disregarded was defendant’s interest in presenting his defense that E.S.B. was motivated to fabricate the allegations to avoid getting in trouble with Shanna and Betty.

[¶ 25.] In Chambers v. Mississippi the United States Supreme Court declared that “[t]he right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’ ” 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 307 (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 135-37, 88 S.Ct. 1620, 1628-29, 20 L.Ed.2d 476 (1968)). When a defendant’s theory “is supported by law and ... has some foundation in the evidence, however, tenuous[,]” the defendant has a right to present it. United States v. Grimes, 413 F.2d 1376, 1378 (7thCir.l969) (citing Tatum v. United States, 190 F.2d 612, 617 (D.C.Cir.1951); United States v. Phillips, 217 F.2d 435, 442-43 (7thCir.l954)); see also United States v. Chatham, 568 F.2d 445, 450 (5thCir.l978); State v. Lujan, 192 Ariz. 448, 967 P.2d 123, 127 (1998); Lewis v. State, 591 So.2d 922, 925-26 (Fla.1991).

[¶ 26.] Evidence tending to establish a motive of E.S.B. to fabricate the allegations against defendant was certainly relevant and probative, as it casts doubt on the State’s evidence that defendant committed the crimes. See SDCL 19-12-1; see Olden v. Kentucky, 488 U.S. 227, 231-32, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988). At the time E.S.B. implicated defendant, after Betty angrily questioned her in regard to a greenish stain in her underwear, Shanna and Betty had concerns about E.S.B. and the neighbor boy, D.H. E.S.B. did not make the accusations against defendant until the questioning from Betty and Shanna, which was about five months after the alleged touching. Allowing defendant an effective cross examination of Sheriff Walker, Shanna, Betty, and E.S.B. would not result in confusion of the issues, delay, waste of time, or presentation of cumulative evidence.

[¶27.] An accused must “be afforded a meaningful opportunity to present a complete defense.” State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.1988) (citation omitted); see also State v. Mixon, 27 Kan.App.2d 49, 998 P.2d 519, 523 (2000) (citing State v. Bradley, 223 Kan. 710, 576 P.2d 647 (1978)). Those denied the ability to respond to the prosecution’s case against them are effectively deprived of a “ ‘fundamental constitutional right to a fair opportunity to present a defense.’ ” State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 608-09 (quoting Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986)). By excluding all references to D.H., the court’s ruling in all probability affected the final result and prejudiced defendant’s right to a fair trial, requiring a new trial. See State v. Hage, 532 N.W.2d 406, 412 (S.D.1995) (citing State v. Phillips, 489 N.W.2d 613, 617 (S.D.1992); State v. Michalek, 407 N.W.2d 815, 818-19 (S.D.1987)).

2. Jury Instruction

[¶ 28.] Defendant next asserts that the court erred when it instructed the jury that defendant could be found guilty if the jury concluded that the alleged crime occurred “on or about” the dates alleged in the indictment. According to defendant, the State agreed to limit the time frame to “on or between June 6-9, 2003.” When the State read the indictment to the jury, it recited “on or between June 6-9, 2003” and the court’s preliminary jury instructions used “on or between June 6-9, 2003.” However, over defendant’s objection, the court told the jury in its final instructions that even though the indictment charged “on or between,” to find defendant guilty the evidence must establish “beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.” (Emphasis added).

[¶ 29.] Defendant argues that the court’s “on a date reasonably near” instruction was improper. He asserts that E.S.B. was at Betty’s home while Shanna was in the hospital in Rapid City, which was from June 6 to at least June 9, 2003. Therefore, because E.S.B. was not with him, defendant claims that the jury would not have found him guilty if the instruction used only the “on or between June 6-9, 2003,” rather than “on a date reasonably near” the charged dates.

[¶ 30.] When time is a material element of the crime or when time is of the essence, it may be error for a trial court to instruct the jury that a defendant can be found guilty if the jury finds that the crime occurred at a date reasonably near the date alleged. See State v. Sonen, 492 N.W.2d 303, 305 (S.D.1992) (citing State v. Nelson, 310 N.W.2d 777, 779 (S.D.1981)). Although defendant claims that E.S.B. was staying at Betty’s when the alleged crimes occurred, there is also evidence that she stayed with defendant while Shanna was in the hospital. Shanna testified at trial that while she was in the hospital defendant was E.S.B.’s primary caretaker. Betty also testified that E.S.B. was with defendant. Therefore, defendant’s “inverse alibi” defense is not sufficient in itself to make time of the essence. This is especially true considering that “in cases of sexual abuse of minors” we have held “that time is not a material element of the offense.” See State v. Darby, 1996 SD 127, ¶ 10, 556 N.W.2d 311, 316 (citing State v. Floody, 481 N.W.2d 242, 247 (S.D.1992); State v. Basker, 468 N.W.2d 413, 416 (S.D.1991); State v. Wurtz, 436 N.W.2d 839, 842 (S.D.1989); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984)).

[¶ 31.] Yet, in this case, there was a specific agreement between the State and the defense that the crime was committed “on or between June 6-9, 2003.” Defendant relied on this agreement and defended the case in accordance with the time alleged. See Sonen, 492 N.W.2d at 306. Because of the agreement in this case, the court erred when it gave the jury the “on a date reasonably near” instruction. This error substantially prejudiced defendant’s rights. See Rage, 532 N.W.2d at 412 (citing Phillips, 489 N.W.2d at 617; Michalek, 407 N.W.2d at 818-19).

3. Sufficiency of the Evidence

[¶ 32.] According to defendant, because the evidence at trial established through the testimony of Dr. Strong that the “genital opening” is the hymen, the State was required to establish that defendant penetrated E.S.B.’s hymen before the jury could find him guilty of rape. Under SDCL 22-22-2, “[s]exual penetration means an act, however slight, of sexual intercourse ... or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings .... ” We have never held that SDCL 22-22-2 requires hymenal penetration to constitute “an act, however slight, ... into the genital” opening. See SDCL 22-22-2. When the State presents evidence of vulval or labial penetration, however slight, this act, if believed by the jury to have occurred, is sufficient to establish penetration of the genital opening. See People v. Bristol, 115 Mich.App. 236, 320 N.W.2d 229, 230 (1981); Jackson v. State, 452 So.2d 438, 440-41 (Miss.1984); State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69, 80 (1994).

4. Investigating Officer’s Testimony

[¶ 33.] Over defendant’s objection, the State asked Sheriff Walker, “During the thousands of investigations you’ve done in your 20-some years of law enforcement, have things changed from what you originally thought when you started the investigation, to when you completed it?” The question was asked in relation to E.S.B.’s inconsistent statements. Sheriff Walker responded:

Witnesses can change their statements. The dates can change. Perceptions that one individual has of seeing one thing, they may add to it or take away from it. Two individuals may see something differently. Any event in an investigation is subject to change. That is why you continue your investigation.

According to defendant, this “self-serving speculation, without foundation is in effect the officer’s unqualified and bare expert opinion about how things routinely change to make the victim’s inconsistent statements seem insignificant.”

[¶ 34.] “[I]t is the function of the jury to resolve evidentiary conflicts, determine the credibility of witnesses, and weigh the evidence.” State v. Svihl, 490 N.W.2d 269, 274 (S.D.1992) (citing State v. Battest, 295 N.W.2d 739, 742 (S.D.1980)). “The general rule ... is that one witness may not testify [on the credibility of another witness] ... because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.” McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989), overruled on other grounds, State v. Raymond, 540 N.W.2d 407 (S.D.1995).

[¶ 35.] Although we have allowed experts in sexual abuse cases to testify generally about child victims, Sheriff Walker was not offered as an expert on investigations involving child victims. See State v. McKinney, 2005 SD 73, ¶ 35, 699 N.W.2d 471, 482 (citing Floody, 481 N.W.2d at 249). However, even if the court erred in allowing this line of questioning, defendant has not argued that the court’s error produced some effect on the outcome of the trial. See Hage, 532 N.W.2d at 412 (citing Phillips, 489 N.W.2d at 617; Michalek, 407 N.W.2d at 818-19). Instead, he claims that this error was prejudicial when considered with other trial errors. In light of the remand on the first issue, we need not determine if this error was prejudicial. See Shamburger v. Behrens, 380 N.W.2d 659, 664-65 (S.D.1986).

5. Forensic Interviewer’s Testimony

[¶ 36.] Defendant next argues that the court improperly allowed Hawkins to testify about the credibility of E.S.B. According to defendant, Hawkins’s testimony was not general in regard to all child victims, but was specific to E.S.B. and, therefore, invaded the province of the jury. The State asked Hawkins, “And so if I tell you that [E.S.BJ’s testimony was that, when she was here yesterday, was that this happened in her room. And I think on the tape we saw it was in her mom’s room.... Does that cause you any great concern as someone who spends their career, 30 years, of working with children and doing forensic interviews?” Over defendant’s objection, Hawkins responded,

I guess, had it been a radically different location, for instance, if she had said it happened in a car when she came and talked to the jury, or if she had said it happened out of doors, that would be a radically different environment, versus one bedroom in a home as another bedroom apparently in the same house? That would not surprise me at all that a child would do that. What we know about children talking about their abuse is that they tell things piece by piece, bit by bit, and much of that is based on what they feel is going to happen, once they tell all.

(Emphasis added). According to defendant, “This is a far cry from talking about characteristics of abused children.”

[¶ 37.] “Generally, ‘one witness may not testify as to another witnesses] credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.’ ” McKinney, 2005 SD 73, ¶ 32, 699 N.W.2d at 481 (quoting Raymond, 540 N.W.2d at 409-10 (citations omitted)). However, an expert’s testimony does not invade the province of the jury when it is a “generalized explanation of a child’s capacity to testify[.]” Id. ¶ 33. We have also declined to find that an expert’s testimony invaded the province of the jury when the expert testified “to the general characteristics of a sexually abused child.” State v. Edelman, 1999 SD 52, ¶ 22, 593 N.W.2d 419, 423. Although the State’s question was specific to E.S.B., and therefore improper, the response Hawkins gave was general and did not touch on E.S.B.’s credibility. Instead, she spoke about how this type of testimony would not surprise her based on her experience with children in general. Thus, although the objection to the prosecutor’s question should have been sustained, the answer itself was not improper.

[¶ 38.] Reversed and remanded.

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

[¶ 40.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 41.] I concur in Issues 1, 2, 3 & 4. I dissent in Issue 5 because the Court improperly allowed forensic examiner Hawkins to testify about the credibility of E.S.B. As stated, her testimony was not general in regard to all child victims but specific to E.S.B. and invaded the province of the jury. See McKinney, 2005 SD 73, ¶¶ 32-36, 699 N.W.2d at 481.

[¶ 42.] Even the majority opinion concedes that “the State’s question was specific to E.S.B. and therefore improper.... ” Supra ¶ 36. However, the majority opinion deludes itself into concluding that the response was general and did not touch on E.S.B.’s credibility. I disagree. The State’s question was specific as to E.S.B., was improper, and the answer to the specific question was responsive to the specific question. The State basically asked if there was a problem with E.S.B.’s credibility because she switched locations of the alleged abuse during her testimony. The forensic examiner improperly bolstered E.S.B.’s credibility when she essentially testified that she had no concern with the inconsistencies in E.S.B.’s testimony. Specifically, when responding to the improper question the forensic examiner explained:

I guess, had it been a radically different location, for instance, if she had said it happened in a car when she came and talked to the jury, or if she had said it happened out of doors, that would be a radically different environment, versus one bedroom in a home as another bedroom apparently in the same house? That would not surprise me at all that a child would do that. What we know about children talking about their abuse is that they tell things piece by piece, bit by bit, and much of that is based on what they feel is going to happen, once they tell all.

Supra ¶ 36 (emphasis added). The majority opinion emphasizes the portions of the testimony which allegedly refer to children generally. However, the preceding statements specifically refer to “she.” The forensic examiner’s answer, taken as a whole, demonstrates that the jury could not have reasonably concluded that the response only went to the general characteristics of a sexually abused child. The response vouched for the credibility of the victim despite the fact that she was confused and incorrect about the room where the alleged incident occurred.

[¶ 43.] This case is going back for a retrial. It would be a serious mistake if this Court puts its stamp of approval on an improper question which resulted in an improper and prejudicial answer that bolstered E.S.B.’s credibility and invaded the province of the jury. This would be built in error for the next appeal and I dissent.

      . In ruling on the State’s motion in limine, the court stated, "I don't think you can say both things. I don’t think you can say, well, we are just going into inconsistent statements, but they do point a finger at a third person." Defense counsel responded, "So, to order me at this point not to get into anybody else possibly doing something that would have caused her to say these things, would be to deprive a defendant of a meaningful opportunity to be heard and an opportunity to cross-examine the key witness in a case that revolves around credibility.” The court’s final ruling: "I agree, he can go into inconsistent statements. If you are going to go into further evidence, then you are going to have to come in and — so the motion is granted, I will allow inconsistent statements. But if you go further than that, you will have to come back and ask permission.”

      . In response to the State’s motion in limine, defense counsel argued,
      I am not conceding that it is third party perpetrator evidence. I can see where someone would say it is that. If she has made statements to others it was someone else, certainly we would have a right to ask her about that. I don’t have a — you know, it is not like the State versus Luna case where they brought in a bunch of witnesses saying that a guy had blood on his hand and was off like that. I really think that I can get into this stuff without providing any notice, because it involves statements of the alleged victim, and my cross-examination of her is what it will be. I just wanted the [c]ourt to know that, yeah, we’ve got some statements out there where she said different things and I plan on getting into those, and I don't want to be precluded based upon a granting of third-party perpetrator motion. I don’t have people lined up to come in and show that, you know, someone else did this. It is our position that this did not occur, that Fred did not do this. So from that standpoint, the third-party perpetrator is really irrelevant in the sense that we are not saying that was what she said happened with Fred, even happened. So that’s our position.

      . Instruction 29 of the court’s final instructions stated in its entirety:
      The indictment charges that the offense was committed “on or between” a certain date.
      The proof need not establish with certainty the exact date of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.