text:
    2004 ND 98
    STATE of North Dakota, Plaintiff and Appellee v. Michael J. McCLARY, Defendant and Appellant.
    No. 20030237.
    Supreme Court of North Dakota.
    May 5, 2004.

      Leann Katherine Bertsch, Assistant State’s Attorney, Bismarck, N.D. for plaintiff and appellee.
    Paul Henry Myerchin, Bismarck, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Michael J. McClary appeals from a judgment entered upon a jury verdict finding him guilty of abuse or neglect of a child. We conclude the jury verdict is not inconsistent and is supported by substantial evidence, the trial court did not err in refusing to dismiss the abuse or neglect charge and in instructing the jury on it, and the court did not err in refusing to question the jury about its verdict. We affirm.

I

[¶ 2] McClary lived in Bismarck with Amy Wery and her fifteen-month-old daughter, Lacey Howe. At about 1:45 p.m. on October 15, 2002, Howe was pronounced dead at a Bismarck Hospital. Howe’s death was caused by a violent, forceful shaking associated with a blunt force impact to the head, which was described as “shaken baby syndrome.” There was evidence both McClary and Wery were involved heavily with drugs and each was alone with Howe on the morning of October 15 for a period of time before her death. McClary and Wery each claimed the other was responsible for Howe’s death.

[¶ 3] The State alternatively charged McClary with murder under N.D.C.C. § 12.1 — 16—01(l)(b) and (c) for allegedly (1) causing Howe’s death under circumstances manifesting extreme indifference to the value of human life, “and/or” (2) committing or attempting to commit a felony offense against a child under N.D.C.C. § 14-09-22, and, in the course of and in furtherance of that crime, causing Howe’s death. The State also charged McClary with abuse or neglect of a child under N.D.C.C. § 14-09-22 for willfully inflicting bodily injury, substantial bodily injury, or serious bodily injury upon a child under the age of six years. The jury returned a verdict finding McClary not guilty of murder and guilty of abuse or neglect of a child. The court denied McClary’s request to ask the jurors “whether the abuse they found was the shaking of the child or whether it was something that wasn’t alleged in the indictment.” The court subsequently denied McClary’s motion for judgment of acquittal on the abuse or neglect charge and for a new trial.

II

[¶ 4] McClary argues the jury’s verdict is legally inconsistent because the jury reached conflicting findings on a necessary element of each count when it found him not guilty of felony murder but guilty of the underlying felony, abuse or neglect of a child. He argues this case is distinguishable from Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) and North Dakota cases dealing with legal inconsistency, and is analogous to DeSacia v. State, 469 P.2d 369 (Alaska 1970).

[¶ 5] In Dunn, 284 U.S. at 393-94, 52 S.Ct. 189, the United States Supreme Court held inconsistent verdicts on separate counts of a three count indictment against a single defendant did not entitle the defendant to relief. In that case, the defendant was charged under prohibition laws with (1) maintaining a common nuisance by keeping intoxicating liquor for sale at a specified place, (2) unlawful possession of intoxicating liquor, and (3) unlawful sale of intoxicating liquor. Id. at 391-92, 52 S.Ct. 189. A jury found the defendant guilty of maintaining a nuisance, but acquitted him of the other two counts. Id. The defendant argued the verdicts were inconsistent because the acquittals and the guilty verdict were based on the same evidence. Id. at 392, 52 S.Ct. 189. The Supreme Court rejected the defendant’s argument under a two-pronged rationale. Id. at 393-94, 52 S.Ct. 189. First, the Court said consistency in verdicts was not necessary, because each count in a single indictment was regarded as a separate indictment, and if separate indictments had been presented against the defendant for possession and for maintenance of a nuisance and the cases had been tried separately with the same evidence, an acquittal on one count could not be pleaded as res judicata in the other. Id. at 393, 52 S.Ct. 189. Second, the Court explained the most that could be said for those inconsistent verdicts was that, either in the acquittal or in the conviction, the jury did not speak its real conclusions, but the inconsistent verdicts did not necessarily mean the jury was not convinced of the defendant’s guilt. Id. The Court interpreted the acquittal as the jury’s unauthorized assumption of a power of leniency, and recognized the verdict may have been the result of a compromise or a mistake, but refused to grant the defendant relief because it would require speculation or inquiry into the jury’s deliberations. Id. at 393-94, 52 S.Ct. 189.

[¶ 6] In United States v. Powell, 469 U.S. 57, 59-60, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the defendant argued convictions for using the telephone to facilitate the commission of certain narcotics crimes were inconsistent with acquittals for the underlying narcotics crimes. The Supreme Court effectively defined inconsistent verdicts as “a situation where ... the jury has not followed the court’s instructions” and “the verdicts cannot rationally be reconciled,” and concluded the verdicts were inconsistent. Id. at 65, 69, 105 S.Ct. 471. See also Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.Rev. 771, 778 (1998) (defining inconsistent verdicts as “verdicts [that] defy reason: a jury following the court’s instructions could not have produced them”). The Court said nothing in the Constitution required a defendant to receive a new trial for an inconsistent verdict, but addressed the issue under its supervisory power over the federal criminal process. Powell, 469 U.S. at 65, 105 S.Ct. 471. The Court recognized the rationale from Dunn about res judicata could no longer be accepted under Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948) and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which applied the doctrine of collateral estoppel under the circumstances of those cases. Powell, at 64, 105 S.Ct. 471. However, the Court concluded Dunn rested on a sound rationale that was independent of res judicata, because where truly inconsistent verdicts have been reached, “ ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” Powell, at 64-65, 105 S.Ct. 471 (quoting Dunn, 284 U.S. at 393, 52 S.Ct. 189). The Court explained inconsistent verdicts that acquit on a predicate offense while convicting on the compound offense are not necessarily windfalls to the prosecution at the defendant’s expense, because it is equally possible the jury properly reached its conclusion on the compound offense, but through mistake, compromise, or lenity arrived at an inconsistent conclusion on the predicate offense. Id. at 65, 105 S.Ct. 471. The Court said “[ijnconsistent verdicts ... present a situation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored.” Id. The Court said any attempt at an individualized assessment of the reason for the inconsistency would be based either on pure speculation or would require inquiry into the jury’s deliberation, which courts generally will not undertake. Id. at 66-67, 105 S.Ct. 471. The Court concluded inconsistent verdicts were reviewable to the extent a defendant could challenge the sufficiency of the evidence supporting the guilty verdict, and where the evidence was sufficient to sustain the conviction on the compound offense, it was speculation to suggest the conviction was a mistake and the acquittal on the predicate offense was the verdict the jury really meant. Id. at 67-68, 105 S.Ct. 471. The Powell rationale is premised upon an inconsistent acquittal and conviction and uncertainty about whose ox has been gored, but the Court indicated “[njothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.” Id. at 69, n. 8, 105 S.Ct. 471.

[¶ 7] Federal courts and the vast majority of state courts follow Powell, and hold that an inconsistent acquittal and guilty verdict against a single defendant in the same prosecution does not entitle the defendant to relief. Muller, 111 Harv. L.Rev. at 787-89 (collecting cases). See 5 LaFave, Israel, and King, Criminal Procedure § 24.10(b) (2d ed.1999); Steven T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 N.Y. L. Sch. L.Rev. 713, 732-33 (1979); Annot., Inconsistency of Criminal Verdict as Betiueen Different Counts of Indictment or Information, 18 A.L.R.3d 259, §§ 2-3 (1968); Annot., Inconsistency of Criminal Verdict With Verdict or Another Indictment or Information Tried at Same Time, 16 A.L.R.3d 866, § 2 (1967). A small minority of states have declined to follow Powell and require consistent verdicts on multiple counts against a single defendant as a matter of state law. Muller, at 787 (collecting cases). See DeSacia, 469 P.2d at 375-78 (declining to follow Dunn under Alaska law).

[¶ 8] Some courts have distinguished between “logically” and “legally” inconsistent verdicts. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). In Moore, at 108 (citing People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20, 478 N.E.2d 335, 340 (1985)), the Minnesota Supreme Court considered a defendant’s argument that convictions for first and second degree murder were “legally” inconsistent because a necessary element of each offense was subject to conflicting findings. The court said logically inconsistent verdicts do not entitle a defendant to a new trial. Moore, at 108 (citing State v. Olkon, 299 N.W.2d 89, 104 (Minn.1980) and State v. Juelfs, 270 N.W.2d 873, 874 (Minn.1978) for general rule that defendant found guilty of one count of two count indictment is not entitled to new trial or dismissal because jury found defendant not guilty of other count even if verdicts may be said to be logically inconsistent). In Moore, at 108, the court said the defendant’s convictions for first degree murder and second degree murder were at least “logically” inconsistent because they required both the presence and the lack of premeditation, but the verdicts were not “legally” inconsistent unless lack of premeditation was a necessary element of second degree murder. The court concluded although premeditation was an element of first degree murder, lack of premeditation was not a necessary element of second degree murder and guilty verdicts for first and second degree murder were not legally inconsistent, especially where the defendant was sentenced and judgment was entered only on the first degree murder conviction. Id. In State v. Netland, 535 N.W.2d 328, 331 (Minn.1995), the Minnesota Supreme Court reiterated a distinction between “logically” and “legally” inconsistent verdicts under Minnesota law and said guilty verdicts may be legally inconsistent if a single necessary element of a greater and an included offense are subject to conflicting findings by the jury. See also State v. Moore, 458 N.W.2d 90, 94 (Minn.1990) (holding guilty verdict for first degree premeditated murder was legally inconsistent with guilty verdict for second degree manslaughter).

[¶ 9] Although this Court has referred to both “logically” and “legally” inconsistent verdicts for claims about inconsistent acquittals and convictions, our decisions have effectively followed Powell and its definition of an inconsistent verdict as a situation where the jury has not followed the court’s instructions and the verdicts cannot be rationally reconciled.

[¶ 10] In State v. Swanson, 225 N.W.2d 283, 284-85 (N.D.1974), this Court considered an argument about inconsistent jury verdicts. There, the defendant was charged with two counts of assault and battery for acts against a husband and a wife. Id. at 284. The trial court instructed the jury on assault and battery and the lesser included offense of assault, and the jury acquitted the defendant of both counts of assault and battery and convicted him of one count of assault. Id. The defendant argued the acquittals on the assault and battery charges were inconsistent with the assault conviction. Id. This Court said every battery was a consummated assault, but not every assault was a battery, and concluded the jury may well have found there was an unlawful offer or threat to use force, i.e., an assault, but the subsequent use of force was justified on the basis of self-defense. Id. at 284-85. Although we essentially concluded the verdicts could be rationally explained and thus were not inconsistent, we also said, in any event, strict standards of logical consistency did not apply to jury verdicts in criminal cases and concluded the verdicts were not legally inconsistent:

“[L]ogical consistency in the verdict as between the several counts in a criminal information is not required. The verdict will be upheld despite the fact that the counts of which the defendant was convicted cannot be logically reconciled with the counts of which the defendant was acquitted.
“... [I]t is conceded that juries have historically exercised a sense of lenity in criminal matters ... and have granted numerous defendants clemency for crimes which they have committed and which the evidence is sufficient to sustain. Such is especially true today in light of prosecutorial practice to charge the defendant with all possible crimes arising from a specific transaction in hopes that the jury will convict on some, if not all.”

Id., at 285 (quoting State v. Mills, 62 Wis.2d 186, 214 N.W.2d 456, 458 (1974)).

[¶ 11] In State v. Moran, 474 N.W.2d 77, 78 (N.D.1991), the defendant, a convicted felon, was charged with aggravated assault and with unlawful possession of a firearm by a convicted felon. The trial court instructed the jury that self-defense was a defense to both charges, and the jury acquitted the defendant on the aggravated assault charge, but convicted him of unlawful possession of a firearm. Id. The defendant argued the acquittal on the aggravated assault charge indicated the jury must have determined he used the firearm in self-defense, and the jury should also have acquitted him of unlawful possession of a firearm. Id. We concluded there was no inconsistency between the acquittal for aggravated assault and the conviction for unlawful possession of a firearm:

“[S]trict standards of logical consistency need not be applied to jury verdicts in criminal cases.” State v. Swanson, 225 N.W.2d 283, 285 (N.D.1974). Here, [the victim] testified that the gun [the defendant] used belonged to [the defendant]. [The victim] also testified that he did not bring the gun into the house. The jury thus heard evidence that [the defendant] owned the gun that he used to shoot [the victim] and that the gun was in [the defendant’s] own bedroom in his own home. This is substantial evidence showing that [the defendant] knowingly possessed the gun prior to the altercation with [the victim]. Therefore, there is no logical inconsistency in the verdicts.

Moran, at 78.

[¶ 12] In State v. Jahner, 2008 ND 36, ¶ 2, 657 N.W.2d 266, the defendant was charged with manslaughter for recklessly causing the death of a person in a vehicle and with reckless endangerment for recklessly endangering the lives of other passengers in the vehicle. A jury convicted the defendant of reckless endangerment, but acquitted him of manslaughter. Id. at ¶¶ 3, 16. The defendant argued the jury’s acquittal on the manslaughter charge indicated it rejected the notion he was reckless, and the guilty verdict for reckless endangerment was inconsistent and repugnant with the acquittal. Id. at ¶ 16. We recognized some courts have attempted to distinguish inconsistency and repugnancy in verdicts containing multiple counts. Id. at ¶ 17 (citing Wax, 24 N.Y. L. Sch. L.Rev. at 716). However, we said our standard for reconciling a jury verdict is whether the verdict is legally inconsistent. Id. at ¶ 17. We said the required culpability for manslaughter was recklessly and the required culpability for reckless endangerment also was recklessly, and the apparent inconsistency to be reconciled was whether it was legally inconsistent for the jury to acquit the defendant of manslaughter and find him guilty of reckless endangerment because both offenses required the same level of culpability. Id. at ¶ 19. Applying the analysis from Moran, we concluded the verdict was not legally inconsistent and was supported by the evidence:

Jahner was charged with manslaughter for the death of Smith and reckless endangerment for endangering the public and the lives of the three other passengers in the vehicle. The level of culpability for an offense is analyzed at the time a person engaged in the conduct which constituted an offense. See N.D.C.C. §§ 12.1-02-01 and 12.1-02-02(1). In this case, the evidence permits the jury to find the culpability level related to the death of one passenger different from the culpability level determined for the period prior to the death when the passengers asked Jahner to slow down. One of the passengers in the car testified that prior to the accident the passengers were hollering at Jahner, who was driving the vehicle, to slow down but he would not listen.
Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal inconsistency if there is substantial evidence to support the charge on which he is convicted. Thus, we conclude, as we did in Moran, there is no inconsistency in a verdict in which there is substantial evidence establishing the defendant committed reckless endangerment, even though the jury found the defendant not guilty of manslaughter which also has the element of recklessness. Because the evidence supports the jury’s finding that Jahner recklessly endangered the lives of the passengers prior to the death of Smith, we conclude the verdict is supported by the evidence and it is not legally inconsistent.

Jahner, at ¶¶ 20-21.

[¶ 13] In State v. Klose, 2003 ND 39, ¶ 43, 657 N.W.2d 276, the defendant argued a verdict was inconsistent because the jury found the defendant lacked criminal responsibility for a burglary, but was guilty of murder. We said we reconcile a claimed inconsistent verdict by examining both the law of the case and the evidence to ascertain whether the verdict represents a logical and probable decision on the relevant issues submitted to the jury. Id. at ¶ 44. Based on the evidence presented to the jury, we concluded the jury could have decided the defendant was insane when he entered the victim’s apartment, but regained sanity before the murder. Id. at ¶ 47.

[¶ 14] Under the trial court’s instructions in this case and the evidence, the jury verdicts are not inconsistent. McClary was charged with alternative theories of murder under N.D.C.C. § 12.1-16-01(l)(b) and (c), which provides:

1.A person is guilty of murder, a class AA felony, if the person:
b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or
c. Acting either alone or with one or more other persons, commits or attempts to commit ... a felony offense against a child under section ... 14-09-22, ... and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person or any other participant in the crime causes the death of any person.

McClary was also charged with abuse or neglect of a child under N.D.C.C. § 14-09-22, which provides, in part:

1.Except as provided in subsection 2, a parent, adult family or household member, guardian, or other custodian of any child, who willfully commits any of the following offenses is guilty of a Class C felony except if the victim of an offense under subdivision a is under the age of six years in which case the offense is a Class B felony:
a. Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 or mental injury.

[¶ 15] At trial and without objection by either party, the court instructed the jury on murder:

1. That on or about October 15, 2002;
2. In Burleigh County, North Dakota;
3. The defendant, Michael J. McClary;
4. Willfully caused the death of Lacey Howe, a human being; and
5. The death of Lacey Howe was caused under circumstances manifesting extreme indifference to human life; and/or
6. The defendant, Michael J. McClary, committed or attempted to commit a felony offense against a child and, in the course of and in furtherance of such crime, caused the death of Lacey Howe.

The court also instructed the jury on abuse or neglect of a child:

1. That on or about October 15, 2002;
2. In Burleigh County, North Dakota;
3. The defendant, Michael J. McClary;
4. Was an adult household member of a child, Lacey Howe; and
5. He willfully inflicted bodily injury, substantial bodily injury or serious bodily injury upon the child, Lacey Howe; and
6. The child, Lacey Howe, was under the age of six years.

[¶ 16] Under the trial court’s instructions and the evidence, we conclude the jury’s acquittal for murder and conviction for abuse or neglect of a child can be rationally reconciled and do not represent inconsistent verdicts. The court instructed the jury it could find McClary guilty of murder if it found McClary willfully caused Howe’s death under circumstances manifesting extreme indifference to human life “and/or” McClary committed or attempted to commit “a felony offense against a child” and, in the course of and in furtherance of such crime, caused Howe’s death. The use of the phrase “and/or” indicates a combination of the conjunctive and the disjunctive and suggests an alternative which should have been avoided. See William P. Statsky, Legislative Analysis and Drafting, 184 (2d ed.1984); North Dakota Legislative Drafting Manual 104 (2003). Moreover, the part of the court’s instruction about committing or attempting to commit “a felony offense against a child” did not state the “felony offense” was abuse or neglect of a child, and nothing in the court’s instructions informed the jury the felony offense was abuse or neglect of a child. Compare NDJI — Criminal K-6.03 (stating essential elements of offense and noting insertion of applicable allegation from N.D.C.C. § 14-09-22 if charge alleges felony offense against a child). The court’s murder instruction should have used the disjunctive “or” and should have identified the “felony offense” as abuse or neglect of a child.

[¶ 17] Under the court’s instructions, if the jury found McClary did not willfully cause Howe’s death under circumstances manifesting extreme indifference to the value of human life, the “and/or” language may have precluded the jury from alternatively considering whether McClary caused Howe’s death while committing or attempting to commit a felony offense against a child. Even if the jury had considered that alternative element, however, the jury was not informed that abuse or neglect of a child was the “felony offense against a child.” Although the parties may have argued the “felony offense” was abuse or neglect of a child, the court instructed the jury that the court’s instructions were the law that governed the case and it was the jury’s duty to accept the law given in the instructions. The court further instructed the jury that before it could find McClary guilty, it must find beyond a reasonable doubt he committed each element of the crime charged. The court also instructed the jury if counsel made any statements as to the law which were not supported by the instructions, the jury should disregard those statements. A jury is presumed to follow instructions given by the trial court. State v. Ellis, 2001 ND 84, ¶23, 625 N.W.2d 544. The court’s murder instruction benefitted McClary, and he cannot complain about instructions that were more favorable to him. State v. Rott, 380 N.W.2d 325, 329 (N.D.1986). There was some evidence McClary admitted shaking Howe, but there was also evidence he did not believe the shaking was sufficient to cause Howe’s death. Under these instructions and the evidence, the jury could have acquitted McClary of murder and found him guilty of abuse or neglect of a child. We therefore conclude the jury verdicts can be rationally reconciled and are not inconsistent. Because we conclude these verdicts can be rationally explained under the court’s instructions and evidence and are not inconsistent, we do not address McClary’s argument that we may provide him greater protection than federal law for inconsistent acquittals and guilty verdicts. See DeSacia, 469 P.2d at 375-78, (declining to follow Dunn under Alaska law).

Ill

[¶ 18] McClary argues obvious error occurred when the trial court failed to dismiss the charge for abuse or neglect of a child and when the court instructed the jury on that count.

[¶ 19] We exercise our authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice. State v. Anderson, 2003 ND 30, ¶ 8, 657 N.W.2d 245; State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. In Olander, at ¶¶ 13-14, we applied the plain error framework from federal law for analyzing claims of obvious error under North Dakota law, and we said an appellate court may notice a claimed error that was not brought to the attention of the trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights. Under that framework, we said once a defendant establishes an obvious error affects substantial rights, we have discretion to correct the error and should correct it if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

[¶ 20] McClary argues the court’s failure to dismiss the charge of abuse or neglect of a child violated double jeopardy. The double jeopardy clause prohibits successive prosecutions and punishments for the same criminal offense. State v. Baeklund, 2003 ND 184, ¶ 40, 672 N.W.2d 431. The double jeopardy clause protects against three types of violations: (1) prosecuting a defendant again for the same conduct following an acquittal; (2) prosecuting a defendant for the same crime after a conviction; and (3) subjecting a defendant to multiple criminal punishments for the same conduct. Id. Here, McClary was prosecuted one time for two charges, and he was not subjected to successive prosecutions or multiple punishments under the double jeopardy clause. McClary’s double jeopardy claim is not obvious error.

[¶ 21] McClary also argues the trial court should not have instructed the jury on the charge for abuse or neglect of a child, and the court “should have realized the abuse or neglect of child charge was a necessary included offense in the felony murder charge and that it could only instruct on it if the jury could reasonable [sic] acquit on the greater offense.” He argues the jury could not acquit him of felony murder and at the same time find him guilty of the underlying felony.

[¶ 22] McClary’s argument ignores that he was charged with murder under alternative theories. Moreover, neglect or abuse of a child is not a lesser included offense of felony murder. An “included offense” means an offense which is established by proof of the same or less than all the facts required to establish the commission of the offense charged. N.D.C.C. § 12.1-01-04(15)(a). Under N.D.C.C. § 12.1-16-01(l)(c), a person is guilty of murder if the person “commits or attempts to commit” a felony against a child under N.D.C.C. § 14-09-22. A felony murder charge does not require the defendant to have committed the underlying felony, and the underlying felony is not an included offense of felony murder. To the extent McClary’s argument suggest that the verdicts are inconsistent, we have previously concluded the verdicts are not inconsistent because they can be rationally reconciled under the court’s instructions. McClary’s claim the court should not have instructed the jury on the offense of abuse and neglect of a child is not obvious error.

IV

[¶ 23] McClary argues the trial court erred in refusing to question the jury about its guilty verdict. After the jury returned its verdict, McClary’s trial counsel asked the court to question the jury how it reached its verdict:

It would appear that the verdict is inconsistent in as much as the abuse of child was charged as or alleged as the shaking of the child. If they found child abuse because he was using drugs around the child, or because he didn’t call the medical authorities as quickly as he should have, that may very well be a lesser offense than the shaking as it was charged in the indictment, and I think that the jury should be asked whether the abuse they found was the shaking of the child or whether it was something that wasn’t alleged in the indictment.

The court refused the request to question the jury.

Section 29-22-26, N.D.C.C., provides, in part:

If the jurors return a verdict of guilty against the accused, the court, before it is accepted, shall ascertain whether it conforms to the law of the case. If, in the opinion of the court, the verdict does not conform to the requirements of the law of the case, the court, with proper instructions as to the error, shall direct the jurors to reconsider the verdict and the verdict cannot be accepted nor recorded until it is rendered in proper form.

[¶ 24] Nothing in the language in N.D.C.C. § 29-22-26 requires the trial court to ask jurors how they reached their verdict. Rather, the plain language of that statute requires a trial court to ascertain whether a verdict conforms to the law of the case before accepting the verdict. A trial court satisfies its obligation under N.D.C.C. § 29-22-26 by comparing the verdict with the law of the case, and the court is not required to question individual jurors about how the verdict was reached. McClary’s argument and proposed question for the jury is contrary to N.D.R.Ev. 606(b), which generally prohibits a juror from testifying about the mental processes inherent in arriving at a verdict. State v. Clark, 1997 ND 199, ¶ 7, 570 N.W.2d 195. Rule 606(b) N.D.R.Ev., is limited to cases where extraneous prejudicial information was improperly brought to the jurors’ attention, any outside influence was improperly brought to bear upon a juror, or whether the verdict was arrived at by chance. Clark, at ¶ 7. We conclude the trial court did not err in refusing to question the jurors about the verdict.

V

[¶ 25] McClary argues the trial court erred in denying his motion for judgment of acquittal and for a new trial. His argument about the denial of his motion for judgment of acquittal challenges the sufficiency of the evidence to support the conviction.

[¶ 26] To successfully challenge the sufficiency of the evidence on appeal, a defendant must show the evidence, when viewed in a light most favor-, able to the verdict, permits no reasonable inference of guilt. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276. In deciding whether the evidence is sufficient to support the verdict, we do not resolve conflicts in the evidence, nor do we judge the credibility of the witnesses. Id. We conclude there was substantial evidence, viewed in the light most favorable to the verdict, to support McClary’s conviction.

[¶ 27] We review a trial court’s decision on a motion for a new trial under the abuse-of-discretion standard. Klose, 2003 ND 39, ¶ 18, 657 N.W.2d 276. Because of our resolution of the issues raised in McClary’s appeal, we conclude the trial court did not abuse its discretion in denying his motion for a new trial.

VI

[¶ 28] We affirm the conviction.

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


source: Caselaw Access Project

author: MEIERHENRY, Justice. SABERS, Justice

license: Public Domain

text:
    2004 SD 50
    STATE of South Dakota, Plaintiff and Appellee, v. Jamie Benjamin WRIGHT, Defendant and Appellant.
    No. 22686.
    Supreme Court of South Dakota.
    Argued on Jan. 13, 2004.
    Decided April 14, 2004.
    Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

      John R. Hinrichs, Assistant Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Jamie Wright challenges his conviction of four counts of sexual contact ■with a minor under SDCL 19-16-38 claiming his confession to law enforcement was involuntary.

FACTS

[¶ 2.] The Wright’s three minor children C.G., D.G., and A.G. were taken into custody by the Department of Social Services (DSS), when the two year old wandered from their home. DSS intended to return the children as soon as the Wrights met DSS requests. The Wrights cooperated and the children were to be returned. The return was stalled when the six year old, C.G., who was Jamie Wright’s stepdaughter, became upset about going home. In a written note, C.G. said she did not want to return home because her stepfather touched her private areas. Child’s Voice conducted a forensic interview with C.G. During the interview, C.G. repeated that Wright touched her privates. A medical exam of C.G. was performed but no physical evidence of sexual abuse was revealed.

[¶ 3.] While C.G. was being interviewed, the Wrights were waiting at DSS believing the children were being returned to them. They had waited over four hours. Detective Blaine Larsen from the Sioux Falls Police Department, who observed the interview with C.G., approached the Wrights at DSS. He told them that he would explain the delay at the police station, He transported the Wrights to the station. Larsen placed Mr. Wright in an interview room and had Mrs. Wright wait in the hall. Larsen initially asked Wright various questions about his identity.

[¶ 4.] Larsen then discussed the background of the events that led to the children being removed from the home. He then confronted Wright with C.G.’s accusations. After some discussion, Wright admitted sexual contact happened twice. Larsen got the details about the two admitted occurrences. Larsen pushed Wright further about the number of occurrences. Wright eventually admitted to four occurrences. Wright refused to make a written statement. Wright was subsequently charged with and convicted of four counts of sexual contact with C.G.

ISSUE

Whether Wright’s confession was involuntary thereby violating his constitutional rights against self-incrimination.

STANDARD OF REVIEW

[¶ 5.] The voluntariness of a confession is a legal question, reviewed de novo. State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30. Deference is given, however, to related questions of fact. Id. This Court “examine[s] the entire record and make[s] an independent determination of the ultimate issue of voluntariness.” Id. (citations omitted).

DECISION

[¶ 6.] Because this case occurred before our decision in Tuttle, the State’s burden of proof to show that the confession was voluntary is beyond a reasonable doubt. In analyzing whether a confession was voluntary, “[t]he factual inquiry centers on (1) the conduct of law enforcement officials in creating pressure and (2) the suspect’s capacity to resist that pressure.” Id. at 22. When evaluating a suspect’s capacity to resist pressure, we consider the totality of the circumstances including:

the defendant’s age; level of education and intelligence; the presence or absence of any advice to the defendant on constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; the use of psychological pressure or physical punishment, such as deprivation of food or sleep; and the defendant’s prior experience with law enforcement officers and the courts.

Id. Further, while law enforcement interrogation may utilize psychological tactics, the trial court may consider law enforcement’s deceptions and misrepresentations in its determination of the voluntariness of admissions. Id.

[¶ 7.] We first consider the conduct of law enforcement. Wright argues that his “confession” was obtained by manipulative and coercive interrogation tactics making it involuntary. Specifically he states that he repeatedly denied the accusations and only confessed because Larsen assured him that his cooperation would get the children returned faster. He claims this caused enormous pressure causing his will to be overborne. Wright dtes State v. Stanga, 2000 SD 129, 617 N.W.2d 486, for the proposition that while some interrogation tactics are legitimate, law enforcement “must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.” Id. at ¶ 16. He states that Larsen’s assurances that the children would be returned if he cooperated, while not an “outright deception” was nevertheless “a fairly attractive carrot dangled in front of a very vulnerable individual.” Further, Wright claims that Larsen had no authority to influence the decision to return the children. Consequently, Larsen made a promise that he had no authority to honor. In State v. Owens, 2002 SD 42, 643 N.W.2d 735, we stated “deception by the police is not sufficient to make an otherwise valid confession inadmissible unless it appears that the deception produced a coerced or involuntary confession.” Id. at ¶ 53.

[¶ 8.] Second, we consider the Defendant’s capacity to resist the pressure created by law enforcement under the totality of the circumstances. Wright was twenty years of age at the time of his confession. The record does not indicate Wright’s educational background. Wright was not advised of any constitutional rights. However, the record does show that Wright had prior experience with law enforcement. He also tells the detective that he had previously been before a judge on criminal charges. Larsen did not use repeated or prolonged questioning during the fifty-minute interrogation. Wright was not deprived of sleep or food nor isolated from family or friends for a long period of time.

[¶ 9.] Additionally, in reviewing the taped interview, this Court was able to observe the demeanor of both the detective and Wright. The detective’s questions were direct. His tone remained calm but persistent. Wright denied the incidents several times. It was obvious that Wright was concerned about the children being returned to his wife. He asked, “Can I get the kids back if I go along with this? That’s what I want to know.” The detective told Wright that the mother will get the children back but that he would have to be out of the home. The detective said, “[W]e know this happened. Step one to getting the kids back- — you have to admit you have a problem and step two is — how are we going to fix that problem so it doesn’t happen again.” Wright asked if he was going to jail and the detective told him he would not go to jail that day but possibly “down the road.” “I want to get the kids back,” Wright responded and then with head in hands, emotionally he admits to the stress he had been experiencing and ultimately to having sexual contact with the child. This portion of the interview lasted only a few minutes. Whether a confession would get the kids back quicker was first broached by the defendant not the detective. The detective seized the inquiry to emphasize to Wright the necessity of his admissions. No doubt, the detective’s statements played on Wright’s emotions. But the question to be answered is whether Wright’s will was overborne, that is, whether the pressure to admit in conjunction with the promise that the mother would have the children returned ultimately coerced an involuntary confession. Under the facts of this case and based on the totality of the circumstances, we cannot say that the trial court’s finding that Wright’s confession was voluntary was in error.

[¶ 10.] The judgments are affirmed.

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

[¶ 12.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 13.] The facts surrounding Wright’s “confession” show that he was subjected to custodial interrogation without the benefit of Miranda warnings. Wright had a good argument that he was coerced, tricked, coached or compelled by borderline promises and misrepresentations that this was a small matter in the process of getting his children back. For this small matter, he received 55 years in prison. However, it appears that the heart of this argument was destroyed by defense counsel’s concession that Wright was not in custody during the interrogation. In view of that concession, his arguments on the merits fall flat. Therefore, I concur in result.

      . "Child's Voice is an outpatient evaluation center for children who have possibly been physically and/or sexually abused. The Child’s Voice team of specialists provides comprehensive medical services, including a forensic interview, upon referral from child protection and law enforcement agencies. This team is trained in the medical assessment and treatment of physically and sexually abused children.” (quoted from official website, available at http://www.siouxval-ley.org/Childrens/AbuseNeglec1/ Child-s.Voice.cfm).

      . The burden of proof was changed to a preponderance of the evidence in Tuttle.

      . Wright did not receive Miranda rights at the time of his confession. If the interrogation was custodial, Miranda rights were required. Appellate counsel waived the issue of custodial interrogation at oral argument.


text:
    2004 SD 49
    Bret M. ESTES, Plaintiff and Appellee, v. ASHLEY HOSPITALITY, INC., A South Dakota corporation, and John Ashley, individually, Defendants and Appellants.
    No. 22823.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided April 14, 2004.

      Michael Y. Wheeler of DeMersseman, Jensen, Christianson, Stanton & Huffman, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    George J. Nelson, Rapid City, South Dakota, Attorney for defendants and appellants.
   MEIERHENRY, Justice.

[¶ 1.] The defendants, John Ashley and Ashley Hospitality, Inc. claim that a letter sent to the plaintiffs attorney in response to a Summons and Complaint constituted an Answer sufficient to withstand a default judgment, or in the alternative, that the Default Judgment should be set aside because of excusable neglect. We affirm.

FACTS

[¶ 2.] Brett Estes sued Ashley and Ashley Hospitality for defaulting on a $50,000 promissory note. Ashley formally served a letter on October 24, 2002 on Estes’ attorney. The letter indicated that the defendants were trying to get an attorney and dispute the claim. Ashley’s letter to Estes is as follows:

October 24, 2002
To Whom it may concern,
Due to the nature of this law suit, I have been unable to find legal representation yet. I wish to retain all legal rights to obtain appropriate legal representation. I am currently in contact with an attorney from Sioux Falls, SD. That attorney will give me a[sic] answer by November 1st, 2002 if his law firm is going to represent me. Since I do not have legal representation at this time, I am personally responding to the complaint by Brett Estes.
I was told by local government officials that it is not legally permissable [sic] to lease a liquor license. You may also check into this matter with the city attorney. Since the original contract I signed was not legally valid, I wish to seek a court date on this matter.
None of the payments that I made over the years in regards to this liquor license ever went to the principal. This fact alone shows that this liquor license was being leased. Therefore, I feel this law suit does not have merit.
Respectfully,
John Ashley

[¶ 3.] Estes filed a motion for default judgment on November 7, 2002. Ashley Hospitality and Ashley do not dispute they had actual notice of the default hearing. Neither Ashley nor Ashley Hospitality made an appearance at the hearing. The trial court entered a default judgment. Less than ten days after the entry of default, Ashley hired legal counsel and filed a Motion to Vacate. The trial court denied the Motion. Defendants raise the following issues on appeal:

ISSUES

I. Whether the default judgment is void for not meeting the requirements of SDCL 15-6-55(a) in that Ashley’s letter to plaintiffs counsel constituted an answer.
II. Whether the trial court abused its discretion by denying Ashley and Ashley Hospitality’s motion to vacate the default judgment.

STANDARD OF REVIEW

[¶4.] The “grant or denial of relief from a default judgment” is reviewed under an abuse of discretion standard. Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, ¶ 11, 656 N.W.2d 323, 327. “ ‘The trial courts discretion is to be exercised liberally in accord with legal and equitable principles in order to promote the ends of justice.’ ” Id. (quoting Smith v. Hermsen, 1997 SD 138, ¶ 8, 572 N.W.2d 835, 838). “A default judgment is an extreme remedy and should only be granted when ‘the adversary process has been halted because of an essentially unresponsive party.’ ” Id. at ¶ 12 (quoting Roso v. Henning, 1997 SD 82, ¶8, 566 N.W.2d 136, 140). “ ‘Default judgments are not favored in the courts since their effect is to prevent a trial on the merits.’ ” Id. (quoting Colton Lumber Co. v. Siemonsma, 2002 SD 116, ¶ 9, 651 N.W.2d 871, 874).

I. Whether the default judgment is void for not meeting the requirements of SDCL 15-6-55(a) in that Ashley’s letter to plaintiffs counsel constituted an answer.

[¶ 5.] Ashley and Ashley Hospitality contend that the statutory requirements in SDCL 15-6-55(a) were not met because the supporting affidavit erroneously stated that the nonmoving party had not pleaded or otherwise defended against the lawsuit. SDCL 15-6-55(a) provides: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by this chapter that fact shall be made to appear by affidavit.” Id. Ashley claims that the letter sent to Estes’ lawyer met the legal requirements of an answer thereby precluding default judgment.

[¶ 6.] We note initially that this letter was written by John Ashley personally without any reference to Ashley Hospitality, Inc. Persons who are not licensed attorneys may not represent corporations pro se. Sunflour R.R., Inc. v. Paulson, 2003 SD 122, ¶ 9, 670 N.W.2d 518, 521 (citations omitted). John Ashley is not a licensed attorney. Therefore the letter, even if construed as an answer, would only be on John Ashley’s behalf, not the corporation’s.

[¶ 7.] Ashley argues that the letter serves as an answer because the letter (1) was served upon Estes’ counsel by a formal process server, (2) was timely served within 30 days of receiving the Summons and Complaint, (3) was signed and the address stated in accordance with SDCL 15-6-ll(a), (4) clearly indicated it was a response, (5) generally denied the claim, (6) specifically asserted an affirmative defense, and (7) although not filed with the court, was constructively filed as an attachment to plaintiffs motion for default judgment.

[¶ 8.] Although the content of Ashley’s letter responded to Estes’ Complaint, Ashley did not formally file the letter or any other documents with the court. SDCL 15-6-5(d) requires that all pleadings are to be filed with the court:

The original of all papers, excluding briefs or memorandums of law thereof, served upon a party or presented to any court or judge in support of any application or motion and including the summons, all pleadings, notices, demands, offers, stipulations, affidavits, written motions and orders shall, if not filed before service, be filed with the court, together with proof of such service, forthwith upon such service. The foregoing requirement of filing applies to the notice of filing of an order and the notice of entry of a judgment together with proof of service thereof, both of which shall be filed forthwith; if not filed within ten days after service thereof, the time of service shall be deemed to be the date of filing of the notice and proof of service.

Id. (emphasis added).

[¶ 9.] In order to meet the requirement of being “filed with the court,” a party must file the pleadings with the clerk of the court or with the judge, if permitted. The statute provides:

The filing of pleadings and other papers with the court as required by this chapter shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

SDCL 15-6-5(e).

[¶ 10.] Neither Ashley nor Ashley Hospitality filed an answer with the clerk of court or with the judge. Since the letter was not filed, it does not constitute a formal answer. It does, however, constitute an appearance. When a party indicates an appearance but has not formally filed an answer, the default statutes require that the party receive “written notice of the application for judgment.” SDCL 15 — 6—55(b)(1). The statute provides in part:

If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.

Id. Estes appropriately attached Ashley’s letter pursuant to SDCL 15-6-55(b) to his motion for default judgment in order to apprise the court of Ashley and Ashley Hospitality’s appearance. Estes also served Ashley with a written notice of his intent to take a default judgment. Ashley admits receiving notice of the hearing. Nevertheless, Ashley failed to appear at the hearing personally or by representative. The trial court granted Estes’ motion and entered a judgment against the defendants.

[¶ 11.] Because the letter was not formally filed and'because Ashley did not appear at the motion hearing, the trial court did not err in granting the default judgment. A party’s intention to defend against a lawsuit must be made clear to the court as well as opposing counsel. If the answer had been filed with the clerk of court, the court file would have clearly indicated the defendants’ intent to defend against the claim. If the defendants had appeared at the hearing, the court would also have known of their intention. Here the defendants did neither. Ashley’s claim that the default judgment is void is without merit.

II. Whether the trial court abused its discretion by denying Ashley and Ashley Hospitality’s motion to vacate the default judgment.

[¶ 12.] The law allows a court to set aside a default judgment under certain circumstances. SDCL 15-6-60(b). The statute provides in part:

On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(4) The judgment is void;

Id. As previously discussed, the default judgment is not void. Therefore, defendants have no claim for relief based upon the reason that “[t]he judgment is void.” Id. The trial court’s refusal to set aside the judgment under this provision of the statute was not an abuse of discretion.

[¶ 13.] In the alternative, Defendants argue that under SDCL 15 — 6— 60(b)(1) the court may grant them relief. This is true if the party “ ‘(1) acted with excusable neglect and (2) had a meritorious defense.’ ” Upper Plains Contracting, Inc., 2003 SD 3 at ¶ 13, 656 N.W.2d at 327 (quoting Hermsen, 1997 SD 138 at ¶ 10, 572 N.W.2d at 838). “ ‘Excusable neglect must be neglect of a nature that would cause a reasonably prudent person under similar circumstances to act similarly.’ ” Id. (citing Peterson v. LaCroix, 420 N.W.2d 18, 19-20 (S.D.1988)). “ ‘The term excusable neglect has no fixed meaning and is to be interpreted liberally to insure that cases are heard and tried on the merits.’” Id. (citing Eby v. Misar, 345 N.W.2d 381, 383 (S.D.1984)). Ashley had the burden of bringing forth evidence to support his claims.

[¶ 14.] First, Ashley contends that he believed that his letter sufficed as an answer and precluded Estes from obtaining a default judgment. Second, his excuse for not appearing at the hearing was that he had a hearing in a different matter, which his wife felt he needed to attend. Ashley admits to receiving notice of the default hearing but faults Estes for not contacting him for a mutually agreeable hearing time. The trial court rejected Ashley’s excuse. The judge explained his reasoning at the conclusion of the hearing as follows:

[Ashley] was fully aware of his obligations, received legal service of the proceedings in this case, never proceeded to file an Answer although he submitted a document which does not comport to an Answer, nor was it filed with the Court. It was a document which expressed an intention of future action but didnt stand as an Answer to the Complaint. It advised that he would be contacting a lawyer because he believed he had some defenses available. That is inadequate. The excuse that he was otherwise engaged on the particular time in question is inadequate in light of the fact that he could easily have made efforts to contact counsel, get it rescheduled, talk to the Court, talk to opposing counsel, make some efforts to avoid the activity that would occur with the default judgment hearing which he had notice of; he failed to respond to that as well as the original Complaint in any substantive fashion.

The record indicates that the trial court considered Ashley’s excuses and found them without merit. Ashley’s response or lack thereof is not that of a “reasonably prudent person under similar circumstances.” Upper Plains Contracting, Inc., 2003 SD 3 at ¶13, 656 N.W.2d at 327 (quoing Hermsen, 1997 SD 138 at ¶ 10). We cannot say that the trial court abused its discretion.

[¶ 15.] In denying Ashley’s Motion to Vacate, the trial court also determined Ashley had not shown a meritorious defense. Ashley claims affirmative defenses of illegality and lack of consideration for the promissory note and underlying agreement. In order to prevail, Ashley must make a prima facie showing “that upon a trial he would be entitled to a judgment more favorable to himself than the judgment from which he is seeking relief.” Hermsen, 1997 SD 138 at ¶ 13, 572 N.W.2d at 839. Ashley “ ‘must present facts either by answer or affidavit from which it could be inferred that upon a trial he would be entitled to a judgment more favorable to himself than the judgment fropa which he is seeking relief.’ ” Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994) (citing Eby, 345 N.W.2d at 383. See Pettigrew v. City of Sioux Falls, 5 S.D. 646, 60 N.W. 27 (1894); Peterson, 420 N.W.2d at 19.)

[¶ 16.] The facts surrounding the underlying action began with Ashley Hospitality’s purchase of a liquor license from Estes for the purchase price of $180,000 on October 1, 2000. The seller-financed purchase required Ashley Hospitality to pay Estes a $2,500 interest payment each month until June 1, 2001 at which time a balloon payment of $180,000 was to be paid. Estes retained a security interest in the license. Financial difficulties of Ashley Hospitality prompted renegotiations on June 1, 2001. The parties renegotiated an “Extension Agreement” wherein Ashley personally guaranteed and signed a promissory note for $200,000. Subsequently Ashley faced criminal charges that placed the license in jeopardy. Estes sought to foreclose his security interest under the provisions of the security agreement. The parties entered into a settlement agreement wherein the liquor license returned to Estes. Additionally, Ashley personally guaranteed a promissory note to Estes in the amount of $50,000 — according to Estes this amount represented the deficiency had Estes foreclosed under the security agreement. Ashley claims the original agreement requiring a monthly interest-only payment amounted to a lease of a liquor license and was illegal, or at least against public policy. Ashley further claims that he received no consideration for the promissory note executed as part of the settlement agreement.

[¶ 17.] Ashley cites no authority in support of his claim that the interest-only monthly payments constitute a lease under the law nor does he cite authority that under these circumstances the contract would be illegal. We have previously held “that our laws allow a creditor to take a security interest in a licensee’s liquor license as it is property between those two parties.” Rushmore State Bank v. Kurylas, Inc., 424 N.W.2d 649, 655 (S.D.1988) (citations omitted). Further, Ashley’s claim of lack of consideration for the settlement agreement is contradicted by the document language. The settlement agreement between Ashley and Estes clearly recites that Ashley Hospitality was in default and the reconveyance of the license and promissory note for $50,000 satisfied all obligations of Ashley Hospitality to Estes. The agreement stated: “Ashley Hospitality and John Ashley shall have no further obligation to Bret Estes except as to payment of the [$50,000] promissory note ...” Ashley’s argument centers on his perceived disparity of the bargain in that Estes received the liquor license, the interest payments of $55,000 plus the promissory note of $50,000. In hindsight, Ashley claims his circumstances forced him into making a bad bargain. The trial court in reviewing the evidence found the notes and agreements to be valid and legal instruments and that Ashley had failed to raise any substantive defenses. Ashley failed to make a prima facie showing that he would receive a more favorable judgment than the default judgment.

[¶ 18.] Under this set of facts, we cannot conclude the trial court abused its discretion in either entering the default judgment or denying the motion to vacate.

[¶ 19.] Affirmed.

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

[¶ 21.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 22.] I concur in result because Ashley has not shown that he had a meritorious defense for non-payment of the $50,000 promissory note. However, I disagree with the majority opinion’s determination concerning excusable neglect based in part on Ashley’s failure to file his answer with the court.

[¶ 28.] The summons that Ashley received was filed September 25, 2002 and provided in relevant part:

You are hereby summoned to appear and answer the Complaint of Plaintiff Bret Estes [ ] and serve a copy of your answer thereto upon the undersigned at his office [attorney’s address], within thirty (30) days after this Summons is served upon you[.] If you fail to answer as required, Plaintiff Estes will apply to the Court to enter default judgment against you for the relief demanded in the Complaint[.]

Ashley followed the instructions of the summons to the letter. He served an answer upon Estes’ attorney within thirty days which denied the allegations of the complaint and gave Estes notice that Ashley intended to raise affirmative defenses. Based on the language of the summons and Ashley’s response thereto, the majority opinion’s determination that Ashley’s response was “not that of a reasonably prudent person under the circumstances” rings false. Ashley did precisely what a reasonably prudent person would have done in light of the information provided by the summons. Furthermore, his answer to the complaint put Estes on notice that Ashley intended to defend the lawsuit.

[¶ 24.] Ashley’s response met all of the requirements of an answer with the exception of filing with the court. This is a technical default which had no impact on Estes’ ability to go forward with his suit. As the majority opinion notes, “default judgment is an extreme remedy and should only be granted when ‘the adversary process has been halted because of an essentially unresponsive party.’ ” Upper Plains Contracting, Inc., 2003 SD ¶3, ¶ 12, 656 N.W.2d at 327 (quoting Roso v. Henning, 1997 SD 82, ¶ 8, 566 N.W.2d 136, 140). There is no indication that the adversary process was halted because of Ashley’s failure to file the answer with the court. The only thing the record indicates is apparent continual overreaching by Estes in his dealings with Ashley which culminated in entry of this default judgment.

[¶ 25.] Similarly, Ashley’s failure to appear at the default judgment hearing is excusable neglect. Based upon the summons sent to him by Estes, Ashley could reasonably believe that Estes would be unable to request or be granted a default judgment because Ashley complied with the demands of the summons.

[¶ 26.] Although I agree that the trial court did not abuse its discretion in refusing to vacate the default judgment, I would hold that Ashley’s conduct constituted excusable neglect even though he failed to file his answer with the court or appear at the default hearing.

      . John Ashley is the President of Ashley Hospitality, Inc.

      . Appellants claim they were served on November 15. Estes claims the notice of the hearing date was served by mail on November 6 and personally served on November 13, 2002.


author: TUCKER, Circuit Judge.

text:
    2004 SD 51
    DUFFIELD CONSTRUCTION, INC., Plaintiff and Appellee, v. Karen K. BALDWIN and Gerald M. Baldwin, Defendants and Appellants.
    No. 22843.
    Supreme Court of South Dakota.
    Argued Nov. 19, 2003.
    Decided April 14, 2004.

      Steven J. Oberg of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Pamela Snyder-Varns, James S. Nelson and Robert C. Seremin of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for defendants and appellants.
   TUCKER, Circuit Judge.

[¶ 1.] Karen and Gerald Baldwin (Baldwins) owned property leased to Wyoming Alaska Corporation (WACO) for use as a gas station and convenience store. Duf-field Construction (Duffield) performed environmental remediation on a leaky underground gasoline storage tank located on the property, installed an upgraded underground gasoline storage tank and made further improvements. WACO failed to pay for Duffield’s services and Duffield filed a mechanic’s lien on the property. Baldwins disputed the validity of the mechanic’s lien. The trial court determined Duffield was entitled to foreclose the mechanic’s lien, entered judgment in its favor and also awarded Duffield attorney’s fees. Baldwins appeal and we affirm.

FACTS AND PROCEDURE

[¶ 2.] This case involves property located in Rapid City, South Dakota. The property is owned by Baldwins and located directly across from the South Dakota School of Mines and Technology. Baldwins purchased this property in 1983 and developed it specifically for lease to WACO for use as a Trailside gas station and convenience store. WACO operated this Trailside store under an unrecorded lease. The lease obligated Baldwins to undertake repairs on the property but WACO was also authorized to make necessary repairs. After seventeen years in use, this property was run-down and the store parking lot was so bad that customers were tripping on chunks of concrete. The store manager also discovered that an underground gasoline storage tank in use since 1983 had been leaking. The store manager contacted Duffield to perform the required environmental remediation, install an upgraded underground storage tank and other fixtures and make necessary repairs. Although Trailside’s store manager had worked for the company for ten years, she did not know that her employer did not own the property. Duffield entered into a contract with Trailside, assuming that Trailside owned the property. Under the supervision of the State of South Dakota, Duffield cleaned up the site, installed the upgraded tank and other fixtures which were designed to satisfy current standards and prevent future contamination and poured a new concrete lot.

[¶ 3.] Trailside paid only a small portion of Duffield’s bill. Duffield filed a mechanic’s lien against the property and WACO filed bankruptcy. Baldwins disputed Duffield’s mechanic’s lien on their property. In this lawsuit, Baldwins conceded that Duffield’s work was necessary and beneficial to the property but claimed that the work constituted a repair performed at the instance of their lessee. They admitted that they had knowledge of the leak and of the plan to upgrade the underground storage tank but claimed that they did not know that any improvements were being made.

[¶ 4.] The trial court found that Duf-field had made improvements to Baldwins’ property. It also determined that Baldwins knew that these improvements were being made before they were completed. The trial court specifically concluded Baldwins had misrepresented facts about what they knew and when they knew it and therefore rejected his testimony concerning the extent of his knowledge about the project as not credible.

[¶ 5.] The trial court held that Baldwins had authorized the improvements to their property or were deemed to have authorized the improvements by failing to give notice that the work was not being undertaken at their instance. It also determined that Baldwins had been unjustly enriched as a result of Duffield’s improvements to their property and that Duffield was entitled to foreclose its lien. Judgment was entered for $166,149, plus interest of $37,736.08 for a total award of $203,885.08 and Duffield was also awarded attorney’s fees.

STANDARD OF REVIEW

[¶ 6.] The foreclosure of a mechanic’s lien and a claim of unjust enrichment are actions in equity. Action Meek v. Deadwood Historic Pres. Comm’n, 2002 SD 121, ¶ 14, 652 N.W.2d 742, 748. This Court reviews such decisions to determine whether the trial court abused its discretion, and will not disturb such decisions unless, “in view of the law and circumstances of a particular case, no judicial mind could reasonably have reached such a conclusion.” Id.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether the trial court abused its discretion in determining that Duffield was entitled to foreclose the mechanic’s lien.

[¶ 8.] The purpose of the mechanic’s lien law is to provide security or protection to persons who improve the property of others by furnishing materials and labor. Action Meek, 2002 SD 121, ¶ 17, 652 N.W.2d at 749. Those who “furnish skill, labor, services ... or materials for improvements, development, or operation of property” at the request of the owner, a “duly authorized agent or representative of the owner” or “any contractor or subcontractor” are entitled to such a lien. SDCL 44-9-1. Even if a landowner has not actually authorized an improvement, his authority will be inferred if he knew about an improvement and did not disclaim liability. The legislature has provided that:

When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior encumbrancers, or lienors shall be deemed to have authorized such improvements, insofar as to subject their interests to the liens therefor; provided that as against a lessor no lien is given for repairs made by or at the instance of his lessee.

SDCL 44-9-2. The mechanic’s lien law thereby operates to protect mechanics and materialmen for their authorized improvements.

[¶ 9.] Conversely, the law provides protection to landowners when liens arise from unauthorized and unwanted improvements. In that regard, SDCL 44-9-4 provides:

Any person who has not authorized the improvements may protect his interests from such liens by serving upon the person doing the work or otherwise contributing to such improvement, within five days after knowledge thereof, written notice that the improvement is not being made at his instance, or by posting like notice, and keeping the same posted, in a conspicuous place on the premises.

This Court has held that an owner’s failure to disclaim responsibility in the manner provided by the statute “ha[s] the same legal effect as if they had expressly authorized the improvement.” See Stoneberger v. Davis, 74 S.D. 300, 51 N.W.2d 873, 876-77 (S.D.1952)(construing identical language found in SDCL 44-9-4 from a prior statute). In Amert Constr. Co. v. Spielman, 331 N.W.2d 307, 310 (S.D.1983), the Court reiterated that:

Interested persons are required to take action rather than remain silent when notified that unauthorized improvements are being made on their real estate or they will be equitably estopped from attacking a mechanic’s lien which attaches thereto.

The law “allows owners to protect themselves against the filing of mechanic’s liens by posting notices of nonliability.” Action Meek., 2002 SD 121, ¶ 17, 652 N.W.2d at 749.

[¶ 10.] Duffield’s work meets the definition of an improvement as previously set forth by this Court. In New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, 603 N.W.2d 202, the Court discussed the meaning of “improvement” contained in SDCL 44-9-3 and quoted the following definition with approval:

The phrase “permanent improvements” means something done to or put on the land or, in other words, something the occupant cannot remove or carry away with him, ... because it has become physically impossible to separate it from the land ... [Ordinary repairs made to meet the usual wear and tear of premises, or changes that merely gratify the taste and contribute to the convenience of the occupant are not considered permanent improvements.]

Id. ¶ 13 (quoting 41 AmJur2d Improvements § 21) (emphasis added). This Court has also cited the following definition of “improvement”:

An improvement in construction parlance is ordinarily defined as “a permanent addition or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs[.]”

Pete Lien & Sons, Inc. v. City of Pierre, 1998 SD 38, ¶ 9, 577 N.W.2d 330, 331 (quoting Webster’s Third International Dictionary 1138 (1976)). Duffield’s construction project clearly constituted an improvement to Baldwins’ property.

[¶ 11.] The trial court’s finding that Baldwins had notice and knowledge that improvements were being made to the property prior to completion of the work was supported by the record. Compare Thorson v. Maxwell Hardware Co., 82 S.D. 385, 146 N.W.2d 739, 742 (1966)(af-firming a finding that the property owner did not have knowledge of improvements being made on his property). The trial court also found as follows:

Gerald Baldwin’s testimony regarding his lack of knowledge of the improvements being made at the Birch Avenue property is not credible.

“It is not this Court’s role to re-examine a trial court’s credibility determination.” Stratmeyer v. Engberg, 2002 SD 91, ¶ 22, 649 N.W.2d 921, 927. Baldwin’s trial testimony stood in sharp contrast to his prior representations. We note that after initially representing to the court that he had never spoken with the lessee about the work until after it had been completed, Baldwin admitted at trial, “I had one conversation before the work was done about what was going to be done, yes.” The prior representations concerning the time of Baldwins’ conversation with the lessee were specifically noted by the trial court and the trial court characterized this trial testimony as “a critical and pivotal circumstance.” The trial court was not bound to accept Baldwin’s testimony about what he knew and when he knew it in light of these conflicting statements and we defer to its credibility determination.

[¶ 12.] Baldwin admitted seeing the new tank sitting on the property before the work began. He assumed that an old tank had leaked or that the tank was being upgraded. According to Baldwin, the parties contemplated that this upgraded tank would remain with the property. Therefore, Baldwin had’notice and knowledge that upgrades and permanent improvements were being made to their property even before he spoke with the lessee. Baldwin also knew that new concrete would be installed when the underground storage tank was upgraded. Additionally, after visiting with their lessee, Baldwin was aware that the underground contamination would be dug out and removed.

[¶ 13.] Although Baldwins claim that they did not watch the work being performed and did not know that Duffield was doing the work, the validity of a lien does not depend on the owner’s knowledge of each and every detail about the improvements being made to his property.

Various circumstances have been held sufficient by the courts to indicate that the owner of the property improved or repaired had, either indirectly or through an agent, actual knowledge within the meaning of such statutes. Among these are letters from the landowner’s agent, written agreements of liability, oral notification to vendor that improvements were being made, and the like. This knowledge need not, however, be actual; it may be constructive.

53 AmJur2d Mechanic’s Liens § 170. As this Court has explained:

The object of such law is to establish a rule of evidence in the nature of an equitable estoppel under which all interested persons ‘are required to speak out when advised of the fact that improvements are being made upon real property. If, with knowledge of the fact, they remain silent, acquiescence and consent to the making of the improvements and to the consequences in case the labor and materials are not paid for are conclusively presumed.’ John Martin Lumber Co. v. Howard, 49 Minn. 404, 52 N.W. 34. In accord with this basic principle our statute applies to an owner who acquires notice or knowledge of an unauthorized improvement while work is still in progress.

Thorson, 82 S.D. 385, 146 N.W.2d at 742. (emphasis added). Even if an owner does not know all the details, once he has acquired notice or knowledge that improvements are being made to his property, he has a duty to act to avoid liability.

[¶ 14.] Karen Baldwin admitted that Gerald Baldwin had told her about seeing a new tank at the store. The Baldwins admitted that at all relevant times Gerald Baldwin was an agent for Karen Baldwin. A principal and agent are deemed as a matter of law to have notice of whatever the other has notice of and are expected to communicate in the exercise of ordinary care and diligence. SDCL 59-6-5. This rule applies even if they have not in fact shared their knowledge. See Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 189 (S.D.1985)(citing 3 AmJur2d Agency § 273 (1962)).

[¶ 15.] After listening to the testimony, observing the witnesses, and weighing all of the evidence, the trial court found that Baldwin was not credible in his testimony regarding the extent of his knowledge about the improvements that were made. As a result, the trial court found that Baldwins had failed to disclaim liability, despite notice and knowledge that improvements were being made to their property. Therefore, the trial court concluded that Duffield was entitled to maintain and foreclose upon its lien. On this record, the trial court did not abuse its discretion.

ISSUE TWO

[¶ 16.] Whether the trial court abused its discretion in awarding Duffield attorney’s fees.

[¶ 17.] Baldwins assert that the trial court erred in awarding Duffield’s attorney’s fees of $32,573.50 and costs of $2,744.23 because they presented a meritorious defense. In support of this argument, Baldwins point to the fact that the trial court found genuine issues of material fact in denying summary judgment. However, the denial of Baldwins’ own motion for summary judgment does not establish the merit of their defense. Baldwins cite no legal authority to support the proposition that the existence of issues of fact or the merit of the proffered defense precludes an award of attorney’s fees. Their failure to cite such authority constitutes a waiver of this issue on appeal. Hart v. Miller, 2000 SD 53, ¶45, 609 N.W.2d 138, 148.

[¶ 18.] Even if they had not waived this issue, they have nevertheless failed to establish that the trial court abused its discretion. SDCL 44-9-42 specifically authorizes an award of attorney’s fees in this situation. The trial court prepared a memorandum decision on this issue and entered detailed findings of fact and conclusions of law in support of the award.

[¶ 19.] Baldwins claim that they should not be punished by an award of such fees. However, nothing in SDCL 44-9-42 suggests that an award of attorney’s fees is punitive or must be based on a conclusion that punishment is warranted. Rather, in awarding attorney’s fees the trial court noted the inconsistent legal positions taken by Baldwins throughout this litigation. The trial court also found that Duffield’s attorney’s fees were reasonable, Duffield had not engaged in any unnecessary discovery, and that Duffield had prepared and presented its case efficiently and economically.

[¶ 20.] Contrary to Baldwins’ assertion, Duffield did not seek any attorney’s fees for services not directly related to the claims against them. In fact, Duffield’s counsel redacted several thousand dollars of attorney’s fees from Duffield’s request, recognizing that those fees had arisen out of an attempt to ascertain whether there were other sources of possible recovery. On this record, the trial court did not abuse its discretion in awarding Duffield attorney’s fees.

APPELLATE ATTORNEY FEES

[¶21.] Duffield has filed a motion for appellee attorney fees in the amount of $11,232.50 incurred in connection with the appeal in this matter. The motion is accompanied by an itemized and verified statement of costs incurred from legal services rendered in accord with SDCL 15-26A-87.3. SDCL 44-9-42 specifically authorizes an award of attorney fees in this instance. Therefore, under' these circumstances we grant Duffield’s request and award appellate attorney fees in the amount of $11,232.50.

[¶ 22.] In light of our determination on the issues above, it is not necessary to address the remaining issues presented by the parties. The judgment of the trial court is affirmed.

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

[¶ 24.] TUCKER, Circuit Judge for SABERS, Justice, disqualified.