author: ZIMMER, J.

text:
    In the Interest of W.B., Minor Child, W.B., Minor Child, Appellant.
    No. 00-1178.
    Court of Appeals of Iowa.
    June 13, 2001.

      Thomas W. Polking of Wilcox, Polking, Gerken, Schwarzkopf, Hoyt & Copeland, P.C., Jefferson, for appellant.
    Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Cynthia Goins Voorde, County Attorney, for appellee.
    Heard by SACKETT, C.J., and ZIMMER, and VAITHESWARAN, JJ. VOGEL, J., takes no part.
   ZIMMER, J.

W.B. appeals a juvenile court disposi-tional ruling finding he committed the delinquent act of possession of alcohol under the legal age in violation of Iowa Code section 123.47(2) (1999). W.B. contends the juvenile court erred in concluding there was substantial evidence that he had possession or control of alcohol at a party. We agree and reverse.

I. Background Facts and Proceedings. On March 11, 2000, seventeen-year-old W.B. went to the home of a Mend. His Mend and another acquaintance told W.B. they planned to attend a party at a rural Calhoun county residence. W.B.’s friends asked him if he would pick them up at the party in about two hours. W.B. agreed to do so.

Later, W.B. traveled to the location of the party to pick up his friends. When he arrived, the party was already in progress. W.B. entered the house where the party was being held. Approximately fifty young people from the area were in attendance. Almost all were under age. Alcohol was available at the party to anyone who wanted it. The alcoholic beverages were being kept in a refrigerator in the basement. Those persons consuming the alcohol were contributing money to those who brought it. W.B. did not take alcohol to the party and the State offered no evidence to show that W.B. purchased, consumed or personally possessed any alcohol while at the party.

When police arrived at the party, W.B. and a number of other minors fled the scene. W.B. testified that he knew his mere presence at a party where alcohol was being consumed was a violation of his school’s rules and could result in his suspension from athletic activities. He claims this was his motivation in fleeing the party. W.B. turned himself in to authorities the next day.

On April 21, 2000, the State filed a petition alleging that W.B. committed the delinquent act of possession of alcohol under the legal age, in violation of Iowa Code section 123.47(2). After an adjudicatory hearing, the juvenile court concluded W.B. was an integral part of a group that possessed a significant amount of alcoholic liquor and beer. The court also concluded W.B. aided and abetted his friends in their possession and control of alcohol. As a result, the court concluded W.B. committed the delinquent act of possession of alcohol under legal age. W.B. was ordered to serve six months informal probation and perform twenty-four hours of community service. W.B. appeals contending there was insufficient evidence to support his delinquency adjudication.

II. Scope of Review. Our review of juvenile delinquency proceedings is de novo. In re T.V., 563 N.W.2d 612, 613 (Iowa 1997). While we give weight to the fact-findings of the trial court, we are not bound by them. In re C.T., 521 N.W.2d 754, 756 (Iowa 1994).

III. Sufficiency of the Evidence. W.B. contends the juvenile court erred in concluding there was substantial evidence that he had possession or control of alcohol at a party.

A. Possession. The juvenile court found proof beyond a reasonable doubt that W.B. possessed alcohol in violation of Iowa Code section 123.47(2). Section 123.47(2) states, in pertinent part, “A person or persons under legal age shall not purchase or attempt to purchase, or individually or jointly have alcoholic liquor, wine, or beer in their possession or control .... ” The issue presented by this appeal is whether or not W.B. violated section 123.47(2) merely by being present at a party where alcoholic beverages were available to minors. No Iowa appellate court has addressed this issue.

The State does not contend it proved W.B. was in actual possession of alcohol. Actual possession would require alcohol to have been found on W.B.’s person. See State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). Indeed, there is no evidence in the record to show W.B. purchased, attempted to purchase, consumed, or personally possessed any alcohol. Nevertheless, the State claims W.B. was properly adjudicated a delinquent by virtue of his mere presence at a party where alcohol was accessible to minors. In support of this argument, the State contends we should extend the doctrine of constructive possession, which has evolved in the context of controlled substance cases, to cases involving possession of alcohol by minors. In narcotics cases, constructive possession is established by showing:

(a) that the accused exercised dominion and control ... over the contraband,
(b) that he had knowledge of its presence, and
(c) that the accused had knowledge that the material was a narcotic.

Id. “Constructive Possession exists when the accused has control or the right to control the substance.” State v. Brandt, 444 N.W.2d 97, 98 (Iowa Ct.App.1989) (quoting State v. Pierce, 240 N.W.2d 678, 679 (Iowa 1976)). Utilizing these criteria, possession of controlled substances can be proved without actual physical possession being shown. Because W.B. testified that alcohol was available to him if he desired it, the State argues W.B. was in constructive possession of alcohol even though he did not physically possess it while at the party.

In response, W.B. contends the constructive possession standard used in cases dealing with possession of illegal drugs should not be imported to cases involving minors in possession of alcoholic liquor. He argues that alcohol differs sufficiently from illegal drugs to justify application of a different standard to prove possession or control. We agree. Possession of a controlled substance without a prescription is illegal in any context, while possession of alcohol is illegal only by those under the age of twenty-one. Blind application of the doctrine of constructive possession to section 123.47(2) could lead to absurd and, we believe, unintended results. For instance, a minor who knows his parents, guardians, or adult roommates keep beer in their refrigerator would arguably be guilty of possession merely because he has knowledge of the presence of the alcoholic beverages and has the ability to maintain control over them. In addition, a minor who was present at a party where alcohol was available, but did not drink alcohol and encouraged other minors not to do so, would still be guilty of possession or control under the State’s theory. We conclude a different standard of proof for illegal possession is required under our possession of alcohol as a minor statute.

We now hold that in order to prove a minor guilty of violating section 123.47(2), the State must prove either actual possession or constructive possession based on facts which permit the inference of an intent to possess or control alcoholic beverages. While the surrounding facts and circumstances of a given case may give rise to a reasonable inference of an intent to possess or exercise control over alcohol, we find no such intent is evidenced in this case. Here, the State offered no evidence that W.B. took alcohol to the party he attended. In addition, there is no evidence that he bought, touched, or consumed alcohol. W.B. did not reside at the house where the party occurred and he played no role in organizing the party. There is no evidence in the record that W.B. supplied alcohol to other minors or encouraged other minors to drink. We conclude there was insufficient evidence to support the juvenile court’s finding that W.B. possessed alcohol as a minor.

B. Aiding and Abetting. In its ruling, the juvenile court also found W.B. aided and abetted his friends in their possession of alcoholic liquor and beer. Although W.B. was never charged with aiding and abetting, we will address this issue briefly.

Iowa Code section 703.1 makes it a crime to aid and abet others in the commission of a crime.

All persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried, and punished as principals. The guilt of a person who aids and abets the commission of a crime must be determined upon the facts which show the part the person had in it, and does not depend on the degree of another person’s guilt.

Iowa Code § 703.1.

The juvenile court found that W.B. lent countenance to the commission of a crime by his presence at the party. The court opined that a “critical mass” of people was necessary to insure the success of the party. Therefore, W.B.’s attendance at the party lent his approval to the illegal activities that took place there.

Aiding and abetting occurs when one actively participates or in some manner encourages the commission of a crime prior to or at the time of its commission. State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). Knowledge of the crime is not enough to prove aiding and abetting. Id. Likewise, presence at the scene of the crime, without more, is not enough to sustain a guilty finding. Id.

Based on the record, it does not appear that W.B. aided or abetted in the commission of a crime. Rather, it appears he simply had knowledge of and was present at the scene of the crime. There is no testimony that he encouraged anyone to drink alcohol or that any of his actions equaled “active participation.” Therefore, the principle of aiding and abetting does not apply to this case.

We conclude there was insufficient evidence to support the juvenile court’s finding that W.B. possessed or controlled alcohol or aided and abetted others in their possession of alcohol. Therefore, we reverse the juvenile court’s dispositional ruling finding he committed the delinquent act of possession of alcohol under the legal age in violation of Iowa Code section 123.47(2).

REVERSED.

      . We distinguish this case from our holding in Brandt, 444 N.W.2d at 98, where we found, "Intent to exercise control over [a controlled substance] is not an element of proof in Iowa under Chapter 204.” Former Chapter 204 is now Iowa Code chapter 124, the Iowa Controlled Substances Act.


source: Caselaw Access Project

author: STREIT, J.

license: Public Domain

text:
    In re the DETENTION OF Robert SPRINGETT, Respondent-Appellant.
    No. 00-0489.
    Court of Appeals of Iowa.
    Aug. 15, 2001.

      Thomas J. Gaul, Assistant Public Defender, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Roxann M. Ryan, Scott D. Brown, and Laura M. Roan, Assistant Attorneys General, for appellee.
    Heard by SACKETT, C.J., and HUITINK and STREIT, JJ.
   STREIT, J.

Robert Springett appeals from a jury’s determination he is a sexually violent predator. On appeal, Springett asserts the following claims:

(1) Chapter 229A of the Iowa Code, the Sexually Violent Predator Act, violates federal and state prohibitions against ex post facto laws;
(2) Chapter 229A violates federal and state prohibitions against double jeopardy;
(3) Chapter 229A violates his federal and state rights to substantive due process;
(4) Chapter 229A violates his federal and state rights to equal protection;
(5) The trial court denied him due process when it refused to instruct the jury “likely to engage in predatory acts of sexual violence” means “highly likely to engage in acts of a sexually violent nature in the future if released”;
(6) The trial court denied him due process when it refused to instruct the jury on a less-restrictive-alternative defense;
(7) The trial court denied him due process when it refused to instruct the jury a “mental abnormality” is “a volitional impairment that makes it difficult, if not impossible, for a person to control his or her behavior”;
(8) The trial court erroneously instructed the jury his Nebraska conviction for first-degree forcible sexual assault was a “sexually violent offense”; and
(9) The trial court erroneously allowed the State to introduce the videotaped testimony of one of his victims.

The supreme court rejected claims identical to Springett’s first, second, and third claims in In re Detention of Garren, 620 N.W.2d 275, 286 (Iowa 2000). Similarly, it rejected claims identical to his fourth, fifth, and sixth claims in In re Detention of Williams, 628 N.W.2d 447, 452-54 (Iowa 2001). We thus limit our discussion to Springett’s final three claims.

A. “Mental Abnormality.”

Springett claims the trial court denied him due process when it rejected his proposed jury instruction regarding what constitutes a “mental abnormality.” We review de novo. Id. at 451.

To commit Springett to the custody of the director of the department of human services, the State was required to prove beyond a reasonable doubt Springett was a “sexually violent predator.” Iowa Code § 229A.7(3) (1999). A “sexually violent predator” is someone

who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Id. § 229A.2(8) (emphasis added). A “mental abnormality,” in turn, is “a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.” Id. § 229A.2(3) (emphasis added).

Springett acknowledges the trial court’s instruction regarding “mental abnormality” mirrored the above-quoted statutory definition. Nonetheless, he argues its instruction should have included a paragraph stating, in pertinent part, the following: “Before you the jury may find [Springett] suffers from a mental abnormality, you must find the mental abnormality suffered by [him] is a volitional impairment that makes it difficult if not impossible for him to control his dangerous behavior.” (Emphasis added.) He argues such language is necessary to comply with a seminal case on the constitutionality of sexual-predator-commitment statutes, Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

Springett relies heavily on the Kansas Supreme Court’s interpretation and application of Hendricks in In re Crane, 269 Kan. 578, 7 P.3d 285 (2000), cert. granted, Kansas v. Crane, 532 U.S. 957, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001). In that sexual-predator-commitment case, the jury had been instructed one of the elements the State had to prove was the respondent “suffers from a mental abnormality or personality disorder which makes [him] likely to engage in future predatory acts of sexual violence, if not confined in a secure facility.” Crane, 7 P.3d at 288 (emphasis added). The jury was further instructed a “mental abnormality” was a “condition affecting the emotional or volitional capacity which predisposes a person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Id. (emphasis added). The Kansas Supreme Court found the language in these instructions— particularly the language regarding “personality disorder” and “emotional ... capacity” — could encompass willful behavior. Id. at 289-90. Accordingly, it further found the jury had not been instructed to make the finding it believed Hendricks required:

A fair reading of the majority opinion in Hendricks leads us to the inescapable conclusion that commitment under the Act is unconstitutional absent a finding that the defendant cannot control his dangerous behavior. To conclude otherwise would require that we ignore the plain language of the majority opinion in Hendricks. Justice Thomas, speaking for the majority, stated that to be constitutional, a civil commitment must limit involuntary confinement to those “who suffer from a volitional impairment rendering them dangerous beyond their control.” He noted that the Kansas Act set forth criteria to make such a finding by linking future dangerousness to a “mental abnormality” or “personality disorder” that “makes it difficult, if not impossible,” to control such behavior.

Id. at 290 (citations omitted) (emphasis added). The court reversed and remanded for a new trial. Id.

We agree a sexual predator can only be committed if the State establishes he or she is dangerous and there is a sufficient link between that dangerousness and a mental disorder of some kind. See Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 513 (discussing constitutionally valid commitment statutes). We do not believe, however, the causal link can only involve a “volitional impairment.” See In re Leon G., 26 P.3d 481, 485 (Ariz.2001). As another court has stated,

Under [New Jersey’s sexual-predator-commitment statute] a person may be deemed to have a mental abnormality that results in his inability to control his dangerousness in one of three different ways: an emotional impairment, a cognitive impairment, or a volitional impairment. While each type of impairment is distinct, their effect can be the same. A person with a volitional impairment might suffer from a sexual compulsion such that he can not control his actions. A person with an emotional impairment might be subject to fits of anger or meanness so extreme that he can not control his actions. A person with a cognitive impairment might suffer from hallucinations or diminished perceptions such that he can not control his actions. The key here is that any of these conditions might predispose a person to commit acts of sexual violence.

In re Commitment of W.Z., 339 N.J.Super. 549, 773 A.2d 97, 108 (App.Div.2001) (citations omitted). Springett’s proposed instruction regarding “mental abnormality” is thus unduly narrow. We affirm the trial court.

B. Nebraska Conviction.

Springett also claims the trial court erred in instructing the jury his Nebraska conviction for first-degree forcible sexual assault was a “sexually violent offense.” We review for correction of errors at law. Iowa R.App. P. 4. “We will not disturb a trial court’s ruling on instructions absent an abuse of discretion.” State v. Webb, 516 N.W.2d 824, 831 (Iowa 1994).

The State had to prove Springett had “been convicted of or charged with a sexually violent offense.” See Iowa Code § 229A.2(8). Pursuant to section 229A.2(7), a “sexually violent offense” includes:

a. A violation of any provision of chapter 709.
b. A violation of any of the following if the offense involves sexual abuse, attempted sexual abuse, or intent to commit sexual abuse:
(1) Murder as defined in section 707.1.
(2) Kidnapping as defined in section 710.1.
(3) Burglary as defined in section 713.1.
(4) Child endangerment under section 726.6, subsection 1, paragraph “e”.
c. Sexual exploitation of a minor in violation of section 728.12, subsection 1.
d. Pandering involving a minor in violation of section 725.3, subsection 2.
e. An offense involving an attempt or conspiracy to commit any offense referred to in this subsection.
f. An offense under prior law of this state or an offense committed in another jurisdiction which would constitute an equivalent offense under paragraphs “a” through “e”.
g. Any act which, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this chapter, has been determined beyond a reasonable doubt to have been sexually motivated.

(Emphasis added.) The trial court instructed the jury as follows:

You have heard evidence [Springett] has been convicted of First Degree Forcible Sexual Assault on February 15, 1989, in the District Court for Douglas County, Nebraska; and Sexual Abuse Third Degree, Pottawattamie County District Court, Council Bluffs Iowa, on December 27,1993.
Each of these convictions, by definition, is a sexually violent offense.

Springett argues this instruction was a misstatement of the law because the State did not present evidence showing the Nebraska offense of first-degree forcible sexual assault falls within section 229A.2(7)’s definition of “sexually violent offense.” However, Springett’s own testimony establishes first-degree forcible sexual assault is an offense “which would constitute an equivalent offense under paragraphs ‘a’ through ‘e’ [of section 229A.2(7).” See Iowa Code § 229A.2(7). At trial he admitted he had pled guilty to raping P.S., a fifty-one-year-old real estate agent from Omaha. He further testified he asked P.S. to come to his home because he “wanted to lure her to the house and rape her.” When P.S. arrived at his home, he “lured her inside and closed the door and locked it and tripped her to the floor.” He then “just had sex with her.” Given this evidence, the trial court did not abuse its discretion in concluding first-degree forcible sexual assault is a “sexually violent offense.” We affirm the trial court.

C. Victim Testimony.

Finally, Springett claims P.S.’s videotaped testimony regarding his sexual assault of her was inadmissible pursuant to Iowa Rule of Evidence 404(b). We review for correction of errors at law. Iowa R.App. P. 4. “Rulings on relevance of evidence and method of proof are entrusted to the sound discretion of the trial court.” Williams, 628 N.W.2d at 456.

Our supreme court addressed a similar claim in Williams. In that case, the respondent moved in limine to prevent the State from introducing proof of his prior convictions. Id. The trial court granted his motion — but only to the extent the State sought to prove its case through victim testimony. Id. On appeal, the supreme court found neither the respondent nor the State had shown an abuse of discretion:

Plainly the proof of [the respondent’s] prior convictions was essential, and therefore relevant, to the State’s case. No commitment could be had without it. And [the respondent’s] willingness to so stipulate did not prevent the State from tendering evidence on the issue. At the same time, [the respondent’s] direct testimony on these crucial matters minimized the State’s need for victim testimony. Victim testimony would have added little substance, but potentially distracting emotion, to the questions of prior sexual misconduct and likelihood of reoffending. We think the district court wisely balanced the issues of relevance and unfair prejudice here. No ground for reversal appears.

Id. at 457 (citation omitted). The respondent in Williams also appealed the trial court’s decision to allow the State to rebut his testimony via victim testimony. The supreme court again found the respondent had not shown an abuse of discretion:

First, the evidence directly countered [the respondent’s] claim that he has come to terms with his disorder and, therefore, need not be confined in a secure facility for treatment. Second, it was not cumulative of the conviction evidence permitted under the court’s limine ruling. Its purpose was not to paint [the respondent] as a bad person but to give a complete picture of a person unable, or unwilling, to own up to past behaviors. Having an accurate portrait of the respondent was crucial to the jury’s decision regarding his dangerousness and likelihood of reoffending.
Nor was the probative value of the rebuttal testimony outweighed by its prejudicial impact. The testimony was brief and straightforward. These were not eight-year-olds describing recent traumatic events. They were adults matter-of-factly recalling unpleasant sexual encounters with [the respondent] during their childhoods. We conclude the court was well within its discretion to admit it.

Id. (citation omitted). Williams thus does not establish per se rules regarding when victim testimony will or will not be admissible in sexual-predator-commitment cases. Rather, the determinative question continues to be whether the trial court acted within its broad discretion in admitting or excluding such testimony.

The State had to prove beyond a reasonable doubt Springett was someone “who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes [him] likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Iowa Code § 229A.2(8). As was discussed previously, Springett admitted at trial he raped P.S. However, his testimony did not provide a complete picture of his crime and sexual deviancy. Cf. Williams, 628 N.W.2d at 455 (“In chilling testimony [respondent Williams] estimated that, prior to 1992, he engaged in sexual fantasies about children ‘probably as frequently as breathing.’ ”). P.S.’s testimony regarding what Springett had done to her was relevant both because it tended to prove he had a prior conviction and because it tended to prove his dangerousness and likelihood of reoffending. See 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5239, at 467 (1978) (stating rule 404(b) “does not preclude the use of other incidents when the issue is the likelihood that the person will engage in certain conduct in the future”). Springett has not shown — and the record does not reveal— that this relevant testimony was significantly prejudicial to him in any way other than by being highly probative of his status as a sexually violent predator. See Iowa R. Evid. 403. The trial court did not abuse its discretion in allowing P.S.’s testimony. We affirm the trial court.

AFFIRMED.

      . All references involving chapter 229A are to the 1999 Iowa Code.

      . We note various jurisdictions besides Kansas have addressed — with varied reasoning and results — claims comparable to Springett’s claim the trial court should have instructed the jury a "mental abnormality” is "a volitional impairment that makes it difficult, if not impossible, for a person to control his or her behavior.” See In re Leon G., 26 P.3d 481 (Ariz.2001); In re Detention of Varner, 315 Ill.App.3d 626, 248 Ill.Dec. 518, 734 N.E.2d 226 (2000); In re Linehan, 594 N.W.2d 867 (Minn.1999), cert. denied, Linehan v. Minnesota, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999); In re Commitment of W.Z., 339 N.J.Super. 549, 773 A.2d 97 (App.Div.2001); In re Detention of Brooks, 94 Wash.App. 716, 973 P.2d 486 (1999). The United States Supreme Court will likely hear oral arguments in Kansas v. Crane in the October 2001 term.

      . At trial, the State offered into evidence a certified copy of Springett's judgment and sentence for first-degree forcible assault. Springett was sentenced to "be imprisoned ... for a period of Not Less that Four (4) Years Nor More Than Seven (7) Years at hard labor.”

      . Rule 404(b) provides:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      .The respondent and the State had both appealed this issue.


author: VAITHESWARAN, J.

text:
    Mary D. GLEASON and David Gleason, Plaintiffs-Appellees, v. Gary Donald KUEKER, Defendant-Appellant.
    No. 00-1043.
    Court of Appeals of Iowa.
    Aug. 15, 2001.

      Henry J. Bevel, III, of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellant.
    Craig Ament of Ament Law Firm, Waterloo, for appellee.
    Considered by SACKETT C.J., and VOGEL and VAITHESWARAN, JJ.
   VAITHESWARAN, J.

A jury awarded Mary Gleason and her husband damages in their personal injury action against Gary Kueker. The damages included an award for future medical expenses. Kueker contends the jury did not reduce this award to present value. We disagree and affirm.

I. Background Facts and Proceedings

Kueker rear-ended Gleason’s car at a stoplight. Gleason sued for injuries sustained in the accident and her husband David sued for loss of consortium.

Dr. Jennifer Rasmussen, a chiropractor who treated Mary Gleason for neck, shoulder, and back pain testified at trial. She opined that the accident resulted in a thirty-two percent whole body impairment rating. She also opined Gleason’s condition would worsen and she would eventually need surgery. Dr. Rasmussen stated she released Gleason from her care after fourteen visits because she was unable to do anything for her. Gleason also called Michael Kaus, a physical therapist who treated her. He opined Gleason needed ongoing physical therapy.

The plaintiffs did not call an economic expert to testify about damages. Instead, Gleason herself estimated the damages she believed she had sustained. She testified her post-accident medical expenses totaled $17,607.59. Based on this figure, and a life expectancy of thirty years, she approximated her future health costs at $130,000. Gleason stated she arrived at this approximation as follows: “Past health care costs divided by four years times 30 years equals $132,00.57 or last month health costs times 12 times 30 years and that comes to $131,400.”

The jury returned a verdict of $299,324.84 for Mary Gleason, $126,400 of which was allocated to future medical expenses. Kueker moved for a new trial and remittitur. The district court denied both motions. This appeal followed. On appeal, Kueker challenges only the future medical expenses award.

II. Scope of Review

Kueker challenges the district court’s denial of his motion for new trial as it relates to the jury’s award of future medical expenses. Our scope of review on this issue is for abuse of discretion. See Condon Auto Sales & Service, Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999).

A denial of remittitur is generally also reviewed for abuse of discretion. Id. at 595; Kuta v. Newberg, 600 N.W.2d 280, 285 (Iowa 1999). However, where the question is whether the jury followed the law, we believe our review is on error. See Schnebly v. Baker, 217 N.W.2d 708, 724 (Iowa 1974) (noting damage award may be set aside if wrong measure is applied); Schwennen v. Abell, 471 N.W.2d 880, 887 (Iowa 1991) (jury presumed to follow instructions).

III. Present Value of Future Medical Expenses

Iowa law requires an award for future damages in a personal injury action to be reduced to present value. See Iowa Code § 624.18. The jury received an instruction consistent with this law. The key question is whether the jury followed the instruction. Kueker contends it did not. He points out that the jury’s award of $126,400 for future medical expenses is roughly equal to Gleason’s past yearly medical expenses multiplied by her life expectancy, less the costs of the chiropractic care that was no longer needed. The Gleasons respond that Kueker’s attempt to parse the future medical expense award amounts to speculation. Both parties raise cogent arguments. To resolve their competing claims, we find it necessary to examine the theory and practice behind present value reductions of future damage awards.

A. Theory. Present value analysis is the method used to determine the value today of future losses or expenses. See Ward S. Curran, Present Value Analysis in Estimating Damages in Torts, 72 Connecticut B.J. 875 (1998). It accounts for the reality that “money has the power to earn money.” Jacob A. Stein, 2 Stein on Personal Injury Damages § 6:16 (3d ed.1997). Plaintiffs can realize earnings through the investment of an advance lump sum award, which effectively overcompensates them for their injuries if the award is not discounted. See Beaulieu v. Elliott, 434 P.2d 665, 671 (Alaska 1967).

A countervailing consideration, however, is inflation, which devalues future damage awards. Id. at 671. The United States Supreme Court has recognized that “ours is not an inflation-free economy” and “anticipated price inflation ... certainly affects market rates of return.” See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 538, 103 S.Ct. 2541, 2551, 76 L.Ed.2d 768, 784 (1983). Therefore, the modern consensus is that present value reductions should take into account future inflationary pressures. In other words, the rate by which an award is discounted should be offset by an anticipated inflation rate. 22 Am.Jur.2d Damages § 144 (1988). Iowa recognizes this economic reality. Schnebly, 217 N.W.2d at 728; see also Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 658 (Iowa 1969) (upholding expert testimony on present value reduction which took into account both inflation and increased productivity of economy).

B. Practice. Although there is a growing consensus that anticipated inflation should be considered in a present value analysis, there is little agreement on the preferred methodology. See 22 Am.Jur.2d Damages § 143; 3 Stein on Personal Injury Damages § 15:11 (3d ed.1997). Courts' generally have adopted one of three approaches: (1) the current dollar earnings and current interest rate or “inflate-discount” method; (2) the real earnings and real interest rate or “real interest rate” method; and (3) the “total offset” method. See Curran, 72 Connecticut B.J. at 377; Michael I. Krauss and Robert A. Levy, Calculating Tort Damages for Lost Future Earnings, 31 Gonzaga L.R. 325, 341 (1995— 96). The first approach projects future damages with inflation built in. Curran, 72 Connecticut B.J. at 380; O’Shea v. Riverway Towing Co., 677 F.2d 1194, 1200 (7th Cir.1982). The second approach projects damages without inflation and discounts those damages at an interest rate that does not have inflation built in (real interest rate). Id. The third approach assumes that the discount rate is completely neutralized or offset by the inflation rate. Pfeifer, 462 U.S. at 544, 103 S.Ct. at 2554, 76 L.Ed.2d at 787.

Our legislature has not mandated a particular approach to discount future awards to present value, nor has it prescribed a discount rate to be applied by the fact-finder. See Iowa Code § 624.18. Therefore, we turn to case precedent.

Although our highest court has not explicitly mandated a particular methodology, it has affirmed the use of the total offset approach where there is evidence from which to conclude that the discount and inflation rates are the same. Schnebly, 217 N.W.2d at 728. Additionally, the court has rejected use of the legal rate of interest to reduce future damages to their present value, adopting instead the rate “found by the jury from the evidence to be fairly expected from reasonably safe investments which a person of ordinary prudence, but without particular financial experience or skill, could make in the locality.” Von Tersch v. Ahrendsen, 251 Iowa 115, 121, 99 N.W.2d 287, 291 (1959). Finally, the court has reaffirmed its faith in the jury to make the present value reduction based on all the relevant facts and circumstances shown by the evidence. Id.; see also Jenkins Truck Lines, Inc., 170 N.W.2d at 664 (noting juries could draw inferences from material matters shown); Jackson v. Chicago, M., St. P. & P.R. Co., 238 Iowa 1253, 1267, 30 N.W.2d 97, 105 (1947) (noting jury’s wide discretion in assessing personal injury damages, including discretion to consider lessened purchasing and earning power of money); accord St. Louis, I.M. & S.R. Co. v. Needham, 52 F. 371, 378 (8th Cir.1892) (noting “human ingenuity seems incapable of formulating a rule which shall specify every circumstance, chance, and probability that a jury may consider, and none that it may not ...”). While certain courts have questioned the wisdom of relegating such a complex economic calculation to a jury, others have noted that the use of economics in a litigation setting is in any event less than exact and the determination should be left to the sound discretion of the jury. See Cox v. Crown CoCo, 544 N.W.2d 490, 500 (Minn.Ct.App.1996); Florida Uniform Civil Jury Instruction 6.10, comment 2; Cf. O’Shea, 677 F.2d at 1201; 3 Stein on Personal Injury Damages, § 15:3. Iowa appears to have endorsed the “sound discretion” approach.

IV. Disposition

Turning now to the facts of this ease, it becomes evident that we must adopt the Gleasons’ position. Although Kueker eom-pellingly argues that the numbers reflect no present value reduction, to adopt his position would require us to speculate as to the jury’s calculations. We decline to do so.

We must assume that the jury acted in accordance with its instruction and made a determination of present value. Schwen-nen, 471 N.W.2d at 887. The jury very well could have determined from Mary Gleason’s medical billing records that the cost of medical care was rising at a higher rate than the prevailing interest rate, justifying a complete offset of the two and adoption of the approximate figure offered by Gleason. See Burgess v. Mid-Florida Service, 609 So.2d 637, 638 (Fl.Ct.App.1992) (noting jury’s failure to arrive at present value calculation smaller than future damages award did not necessarily prove failure to follow instructions but may have been “consistent with an intentional determination that the present value is equal to future damages by application of a ‘total offset’ calculation.”) In the alternative, the jury could have reduced Mary Gleason’s $130,000 figure to $126,400 not because it was taking into account the assumptions suggested by Kueker, but because it believed inflation would not offset the discount rate. Because there was some evidence from which the jury could have made this present value determination, we conclude the future medical expense award should be affirmed. See Miller v. Young, 168 N.W.2d 45, 53 (Iowa 1969).

The district court did not abuse its discretion in denying Kueker’s motion for new trial and did not err in rejecting his request for remittitur.

AFFIRMED.

      . The Gleasons introduced standardized mortality tables reflecting a life expectancy for Mary of 30.3 years.

      . The jury specified the following damages:
      Past Medical Expenses $ 17,607.59
      Future Medical Expenses $126,400.00
      Loss of time(earnings) $ 3,604.25
      Loss of future earning capacity $ 11,713.00
      Past loss of full body $ 10,000.00
      Future loss of full body $100,000.00
      Past pain and suffering $ 5,000.00
      Future pain and suffering $ 25,000.00
      David Gleason received $1000 for past loss of consortium and $4000 for future loss of consortium.

      . That provision states in relevant part:
      2. In all personal injury actions where the plaintiff recovers a sum of money that, according to special verdict, is intended, in whole or in part, to address the future damages of the plaintiff, that portion of the judgment that reflects the future damages shall be adjusted by the court or the finder of fact to reflect the present value of the sum.

      . The jury was instructed that "present value” is "a sum of money paid now in advance which together with interest at a reasonable rate of return, will compensate the plaintiff for future economic losses.”


author: Alan C. Page Associate Justice

text:
    Dirk E. CANNON, Relator, v. FEDERAL EXPRESS, Self-Insured/Alexsis/RSKCO, Respondent, and MN Department of Economic Security, Intervenor.
    No. C1-01-2175.
    Supreme Court of Minnesota.
    March 26, 2002.
    Hon. Jennifer Patterson, Compensation Judge, Office of Administrative Hearings.
    Raymond R. Peterson, McCoy, Peterson, Jorstad & Brabbit, Minneapolis, for relator’s.
    Jay T. Hartman, Tracy M. Borash, Hea-cox, Hartman, Mattaini, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED' that the decision of the Workers’ Compensation Court of Appeals filed November 16, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

Alan C. Page Associate Justice


author: /s/ James H. Gilbert Associate Justice

text:
    Raymond J. OSWALD, Estate of Raymond J. Oswald, by Robin D. Simpson, Personal Representative, Respondent, v. BOISE CASCADE CORPORATION (1969-1991), Self-Insured, Relator, and Health Care Financing Administration (Medicare), Intervenor.
    No. C0-02-24.
    Supreme Court of Minnesota.
    March 27, 2002.
    Workers’ Compensation Court of Appeals, Hon. William R. Pederson, Judge.
    Michael C. Jackman, Genevieve A. Beck, Larkin Hoffman Daly & Lindgren & Lind-gren, Ltd., Bloomington, for Relator.
    Steven D. Hawn, Sieben Polk LaVerdi-ere Jones & Hawn, P.A., St. Paul, for Respondents.
    Harvey F. Ficek, Noridian Government Center, Fargo, ND, for Intervenor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 20, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ James H. Gilbert Associate Justice


author: KLAPHAKE, Judge.

text:
    In re the Marriage of John S. SVENNINGSEN, Petitioner, Appellant, v. Lacretia A. SVENNINGSEN, Respondent.
    No. C3-01-1271.
    Court of Appeals of Minnesota.
    March 26, 2002.
    Gerald O. Williams, Jr., Hellmuth & Johnson, PLLC, Eden Prairie, for appellant.
    Matthew L. Fling, Edina, for respondent.
    Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

KLAPHAKE, Judge.

John Svenningsen appeals from a district court order modifying his child support obligation. He challenges the court’s interpretation of Minn.Stat. § 518.551, subd. 5(f) (2000). Because the district court properly interpreted the statute, but miscalculated the amount of the child support obligation after 18 months, we affirm as modified.

FACTS

Upon dissolution of their marriage in May 1999, the court awarded appellant and respondent Lacretia Svenningsen joint physical custody of their minor child. The dissolution allocated 65% of parenting time to respondent and 35% of parenting time to appellant. The court calculated child support obligations pursuant to the Hor-tis/Valento formula and ordered appellant to pay $178 per month in child support to respondent.

During the marriage, appellant studied to become a physician and incurred student loans totaling more than $130,000. The marital termination agreement provided that

[t]he student loans incurred during [appellant’s] medical school education are anticipated to be paid back in installments with interest, and [appellant] shall pay, indemnify and hold the [respondent] harmless from these debts; provided such payments will be considered for purposes of determining his support obligation, in any future proceedings in accordance with [Minn.Stat.] § 518.551, subd. 5(d-f)[.]

On July 1, 2001, appellant’s salary increased from $34,284 to $116,160 per year, and he also began making payments on his student loans. The parties agree that appellant’s child support obligation should increase and that a downward departure is warranted due to his significant student loans. They disagree, however, as to the duration of the downward departure. The district court concluded that under Minn. Stat. § 518.551, subd. 5(f) (2000), the departure is limited to 18 months.

ISSUE

Did the district court err in its interpretation of Minn.Stat. § 518.551, subd. 5(f)?

ANALYSIS

Modification of child support is within the district court’s broad discretion and will not be reversed absent an abuse of that discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986). We review questions of statutory interpretation, however, de novo. In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn.1998).

Appellant argues that the district court misinterpreted the guidelines provision that allows consideration of his private debts when establishing child support. The guidelines enumerate six factors that a court must take into consideration “in setting or modifying child support or in determining whether to deviate from the guidelines.” Minn.Stat. § 518.551, subd. 5(c)(1) — (6) (2000). Among those six factors, the court must consider a parent’s debts “as provided in paragraph (d).” Paragraph (d) allows consideration of debts owed to private creditors if, among other things, the district court determines that the debt “was reasonably incurred for necessary support of the child or parent or for the necessary generation of income.” Minn.Stat. § 518.551, subd. 5(d)(2) (2000).

The district court properly found that appellant complied with all the provisions of subdivision 5(d), so as to allow consideration of his student loans. The court then determined that under Minn.Stat. § 518.551, subd. 5(f) (2000), it could not consider appellant’s monthly student loan payments for longer than 18 months. The issue for this court is the interpretation of Minn.Stat. § 518.551, subd. 5(f), which states:

Any further departure below the guidelines that is based on a consideration of debts owed to private creditors shall not exceed 18 months in duration, after which the support shall increase automatically to the level ordered by the court. Nothing in this section shall be construed to prohibit one or more step increases in support to reflect debt retirement during the 18 month period.

Appellant argues that the phrase “further departure” implies that some other departure has already occurred. Appellant argues that because the only departure here is based on his student loan debts, subdivision 5(f) does not apply. We disagree.

In reading subdivision 5(f), it is unclear exactly what the phrase “further departure” references. The phrase was first added to the statute in 1984. 1984 Minn. Laws ch. 547, § 18. At that time, the statute included an additional sentence preceding the “further departure” phrase that stated: “The court shall order child support in accordance with the guidelines and any departure therefrom.” Id. Thus, in 1984 the statute required that a court first order child support based on the guidelines and then consider any departure. Any “further departure” based on debts was to be limited to 18 months. In 1986, the legislature moved the sentence preceding the “further departure” phrase to subdivision 5(a). 1986 Minn. Laws ch. 406, § 4. We conclude that the legislature’s actions have left the meaning of “further departure,” which is currently in subdivision 5(f), unclear.

Case law has tended to ignore the term “further” when interpreting subdivision 5(f). In Potocnik v. Potocnik, 361 N.W.2d 414, 416-17 (Minn.App.1985), we addressed the consideration of educational loans when establishing child support payments and concluded that “[d]eparture based exclusively on consideration of private debts can be for a term of no more than eighteen months.” In Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn.App.1996), we concluded that a court may “under certain circumstances consider debts owed to ‘private creditors’ and order a departure below the guidelines for a period not to exceed 18 months.”

Commentators have discussed subdivision 5(f) in a similar vein:

A departure below the guidelines that is based on a consideration of debts owed to private creditors may not exceed eighteen months duration, after which the support will automatically increase to the level ordered by the court.

1 Minnesota Family Law Practice Manual § 7.07[C], at 7-43 (Cathy E. Gorlin ed., LexisNexis 3d ed.2001) (footnote omitted).

Thus, subdivision 5(f) has consistently been interpreted in cases and by legal commentators as allowing a departure for private debts only for a period of 18 months, even if that is the only basis for departure. This interpretation is consistent with public policy.

The legislature did not allow consideration of debts for child support purposes until 1984. See 1984 Minn. Laws ch. 547, § 18. Child support is intended, in part, to provide a child with a standard of living similar to what the child would have experienced had the parties remained married. Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn.App.1996). Thus, children are entitled to benefit from increases in a parent’s income, particularly as those increases benefit the parent’s standard of living. Id.

Because the paramount concern of child support is the welfare of the child, it would be absurd to allow a departure for 10 years, until appellant has repaid his student loan debt. Depriving the child of the full benefit of appellant’s increased income and standard of living for 10 years while he repays his long-term debt is not in the child’s best interest. Tammen v. Tam- men, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970) (concluding that in matters of support, paramount concern is child’s welfare). For all these reasons, we consider the word “further” superfluous and conclude that Minn.Stat. § 518.551, subd. 5(f) prohibits any departure below the guidelines based on a consideration of private debts to exceed 18 months.

Appellant further argues that the district court incorrectly calculated the amount of his child support obligation after 18 months, because it continued to deduct respondent’s student loan payments when calculating her net income. The district court found that during the next 18 months, appellant’s net monthly income with deductions, including his student loan payments, is $3,940.66, and that respondent’s net income is $2,259, with deductions that include her student loan payments. Given the split of custody of 65% to respondent and 35% to appellant, the court calculated appellant’s child support obligation at $640 and respondent’s obligation at $198, resulting in appellant’s net obligation totaling $442.

After 18 months, the court determined that appellant’s obligation will automatically increase to $735, given his net income of $5,742, without consideration of his student loan payments. Appellant, however, correctly notes that this second calculation overlooked and continued to deduct respondent’s $165 per month student loan payment. We therefore modify the order so as to set appellant’s child support amount after 18 months at $721 per month.

DECISION

We conclude, therefore, that the district court properly interpreted MinmStat. § 518.551, subd. 5(f) to allow consideration of the parties’ student loan payments for 18 months, but miscalculated appellant’s child support obligation after the 18 month period. We therefore affirm the district court’s order as modified.

Affirmed as modified.


author: PETERSON, Judge.

text:
    In the Matter of the WELFARE OF J.K.
    No. C7-01-1273.
    Court of Appeals of Minnesota.
    March 26, 2002.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, for respondent State of Minnesota.
    Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, for appellant J.K.
    Considered and decided by CRIPPEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

PETERSON, Judge.

This appeal is from an order revoking appellant J.K’s probation imposed in an extended jurisdiction juvenile (E JJ) prosecution following convictions of third-degree criminal sexual conduct and crime committed for the benefit of a gang. J.K. argues that the district court abused its discretion in revoking probation and executing an 81-month adult prison sentence based on a series of “technical violations,” including truancy from school, missing some juvenile programming, and violating a no-contact order. We affirm.

FACTS

In April 1998, a delinquency petition was filed charging J.K. with committing multiple counts of first-and third-degree criminal sexual conduct and crime committed for the benefit of a gang. The parties entered into a plea agreement, under which J.K. admitted to committing one count each of third-degree criminal sexual conduct and crime committed for the benefit of a gang. The plea agreement provided for an 81-month adult prison sentence but with execution stayed on the condition that J.K. successfully complete EJJ probation.

J.K. was 14 years old when he committed the offenses. In the order revoking probation, the district court found:

The offenses were committed against two young girls, ages 12 and 13, who were sexually assaulted by multiple individuals as part of a gang initiation. [J.K.] was in the car that drove Victim One to the garage where Victim Two was being assaulted. He admitted to having intercourse with Victim One and stated that he was the third one to “f .... ” her and that he ejaculated in her because another gang member told him to kill his sperm. [J.K.] was an active participant and forced the girls to have sexual intercourse with him at different times in a garage. Both victims were allegedly prevented from leaving. After one of the victims had been assaulted by another accomplice, [J.K.] pushed the victim back to the floor and forcibly penetrated her vagina with his penis. The victim tried to get away and told [J.K.] she was in pain during sexual intercourse. Afterwards, [J.K.] and the other gang members celebrated by going to McDonalds.

J.K. was committed to Mille Lacs Academy, a residential treatment program for sex offenders. In February 2000, J.K. was discharged from Mille Lacs Academy after successfully completing the program and ordered to live with his parents and comply with probation conditions, including having no contact with known gang members. In May 2000, the district court ordered J.K. to Kohler Hall’s 21/14-day consequence program. The court also ordered J.K. to complete the Wilder Foundation Social Adjustment Program for Southeast Asians and to have no contact with N.X. J.K. was discharged from Koh-ler Hall on May 25, 2000. On June 28, 2000, J.K. admitted violating probation by violating the no-contact order and curfew and by failing to attend the Southeast Asian program at Wilder. The district court ordered him committed to the Boys Totem Town long-term residential program. In February 2001, J.K. was discharged from Boys Totem Town and placed on enhanced supervised probation, a program designed to provide structure, accountability, and community-based resources to felony-level offenders who pose a high risk to public safety.

On April 6, 2001, J.K.’s probation officer, Dominic Dzik, filed a notice of violation of probation. Dzik alleged that J.K. had committed the following probation violations: failed to complete weekend work crew on three occasions in February and March 2001; failed to follow curfew on numerous occasions; failed to attend a scheduled enrollment appointment at Central High School on March 5, 2001; truant from classes at Central High School on several occasions; violated the no-contact order with N.X. on several occasions; failed to fully cooperate with the Wilder Southeast Asian program; and absent from classes at Transitions for Success School on numerous occasions.

At a violation hearing in May 2001, J.K. admitted that he had failed to complete weekend work crew on two occasions; violated curfew about six times; failed to attend an enrollment appointment at Central High School on March 5, 2001; failed to attend about half of his classes after enrolling at Central High School on March 6, 2001; failed to fully cooperate with the Wilder Southeast Asian program initially, although J.K. claimed he had been meeting that requirement at the time of the violation hearing; and was absent from classes at Transitions for Success School, although he claimed those absences were due to having to care for his infant son. J.K. denied violating the no-contact order with N.X., claiming that those violations had been addressed in a previous violation hearing, which resulted in his commitment to Boys Totem Town. The district court, however, found that J.K. admitted violating the no-contact order with N.X.

At the contested disposition hearing, Dzik testified that when placed in the community, J.K. was consistently noncompli-ant with probation conditions. Dzik cited the examples of J.K. staying out until 12:00 or 1:00 a.m. despite a 9:00 p.m. curfew and of J.K. having a sexual relationship and fathering a child with N.X., an 18-year-old female gang member who is married to a relative of J.K.’s, despite the no-contact order. Dzik also expressed concern about J.K. displaying an attitude that he would do as he wanted despite a clear understanding of probation conditions and expectations and repeated warnings that continued violations could result in the revocation of probation. Dzik recommended revoking J.K.’s EJJ probation because, despite the variety of community-based and long-term residential treatment programs that had been made available to J.K., he continued to display an unwillingness to comply with probation and to exhibit the same behaviors that brought him before the juvenile court and led to his designation as an EJJ.

Donna Gillitzer, a Hennepin County juvenile probation officer who supervises EJJ clients, testified that she reviewed J.K.’s entire probationary file, met with him several times, and presented his file for review by the Hennepin County EJJ screening committee. Gillitzer and the screening committee agreed that despite being given numerous opportunities to remain in the juvenile justice system, J.K. failed to comply with the expectations of his EJJ status. Gillitzer explained that although J.K. did very well in placements, when he returned to the community, he reverted to noncompliance with probation conditions. Gillitzer testified that J.K. continued to exhibit the same types of behavior that he exhibited when he committed the offenses that resulted in his EJJ status and that those types of behavior created a public-safety concern. Gillit-zer also testified that J.K. had told her that he did not want further treatment. Gillitzer and the Hennepin County screening committee recommended revoking J.K.’s probation.

ISSUE

Did the district court err in revoking J.K.’s probation?

ANALYSIS

This court applies an abuse-of-discretion standard when reviewing a district court’s revocation of probation. State v. Bradley, 592 N.W.2d 886, 887 (Minn.App.1999), review denied (Minn. July 28, 1999). But revocation of EJJ probation is governed by statute, and statutory construction is a question of law subject to de novo review. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).

Minn.Stat. § 260B.130 (2000) governs EJJ prosecutions. If an EJJ prosecution results in a guilty plea or a finding of guilt, the district court shall

impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.

Id., subd. 4(a)(2).

Generally, in revoking probation, a district court must (1) designate the specific probation condition or conditions that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn.1980). But when considering the revocation of EJJ probation, the court’s discretion must be exercised consistently with the provisions of Minn.Stat. § 260B.130, subd. 5. Bradley, 592 N.W.2d at 887. The text of the EJJ statute dictates that the district court need not consider the third Austin factor, whether the need for confinement outweighs the policies favoring probation. Id. at 888.

1. J.K. argues that the district court did not find that his probation violations were intentional or inexcusable. Following the revocation hearing, the district court orally found that J.K’s violations were “intentional and unexcusable.” Moreover, although the court did not specifically find in its written order that J.K.’s violations were intentional and inexcusable, we can infer such a finding from a reading of the district court’s order as a whole, and the evidence supports such a finding. Although J.K. presented evidence of cultural difficulties to excuse his behavior, the testimony of Dzik and Gillitzer showed that J.K. deliberately and repeatedly refused to comply with probation requirements or take advantage of treatment opportunities and instead continued to engage in the behaviors that led to his EJJ status.

2. J.K. next argues that the district court’s comments at the revocation hearing seemed to imply that the court incorrectly believed that under Minn.Stat. § 260B.130, subd. 5, it had little choice about the revocation and was required to execute the previously imposed sentence. J.K. argues that MinmStat. § 260B.130, subd. 5, requires revocation only when the original offense of the probationer fell under Minn. Stat. § 260B.130, subd. 1(2), and the offense for which he was previously sentenced did not fall under Minn.Stat. § 260B.130, subd. 1(2). J.K’s interpretation of Minn.Stat. § 260B.130, subd. 5, is incorrect.

Minn.Stat. § 260B.130, subd. 5, states:

If the offender was convicted of an offense described in [Minn.Stat. § 260B.130,] subdivision 1, clause (2), and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.
(Emphasis added.)

Minn.Stat. § 260B.130, subd. 1, states:

A proceeding involving a child alleged to have committed a felony offense is an extended jurisdiction juvenile prosecution if:
(1) the child was 14 to 17 years old at the time of the alleged offense, a certification hearing was held, and the court designated the proceeding an extended jurisdiction juvenile prosecution;
(2) the child was 16 or 17 years old at the time of the alleged offense; the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or to have committed any felony in which the child allegedly used a firearm; and the prosecutor designated in the delinquency petition that the proceeding is an extended jurisdiction juvenile prosecution; or
(3) the child was 14 to 17 years old at the time of the alleged offense, the prosecutor requested that the proceeding be designated an extended jurisdiction juvenile prosecution, a hearing was held on the issue of designation, and the court designated the proceeding an extended jurisdiction juvenile prosecution.

J.K. argues that when used in Minn. Stat. § 260B.130, subd. 5, the phrase “an offense described in subdivision 1, clause (2),” means an offense that meets all of the criteria in Minn.Stat. § 260B.130, subd. 1(2). Therefore, J.K. continues, because he was 14 when he committed his offense and the prosecutor did not designate in the delinquency petition that the proceeding is an EJJ prosecution, he did not commit an offense described in Minn.Stat. § 260B.130, subd. 1(2). The state argues that the phrase “an offense described in subdivision 1, clause (2),” refers to the single criterion in Minn.Stat. § 260B.130, subd. 1(2), that limits application of the clause to “an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or * * * any felony in which the child allegedly used a firearm.” The overall structure of Minn.Stat. § 260B.130, subd. 1, persuades us that the state’s interpretation of Minn. Stat. § 260B.130, subd. 5, is correct.

The individual clauses in Minn.Stat. § 260B.130, subd. 1, describe three sets of criteria under which “[a] proceeding involving a child alleged to have committed a felony offense is an extended jurisdiction juvenile prosecution.” The individual clauses do not describe offenses; they describe circumstances under which a proceeding that involves an alleged felony offense becomes an EJJ prosecution. One criterion in subdivision 1, clause 2, is that the alleged offense is “an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or * * * any felony in which the child allegedly used a firearm.” This criterion describes offenses. The other criteria in subdivision 1, clause 2, describe the offender and activities of the prosecutor.

Because Minn.Stat. § 260B.130, subd. 5, refers to “an offense described in [Minn.Stat. § 260B.130,] subdivision 1, clause (2),” rather than to an EJJ prosecution under Minn.Stat. § 260B.130, subdivision 1, clause (2), we conclude that “an offense described in subdivision 1, clause (2),” means an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or any felony in which the child allegedly used a firearm. J.K. does not dispute that he was convicted of such an offense. Consequently, under Minn.Stat. § 260B.130, subd. 5, the court was required to revoke the stay and order execution of J.K.’s sentence unless it made written findings regarding mitigating factors that justified continuing the stay.

This interpretation of Minn.Stat. § 260B.130, subd. 5, is consistent with Minn. R. Juv. P. 19.09, subd. 3(C)(2), which states:

If the court finds upon clear and convincing evidence that any provisions of the disposition order were violated, or if the probationer admits the violation, and the extended jurisdiction juvenile conviction was for an offense with a presumptive prison sentence or the probationer used a firearm, the court shall order the execution of the sentence or make written findings indicating the mitigating factors that justify continuing the stay.

Under rule 19.09, subd. 3(C)(2), if the probationer violates the disposition order, and the probationer was convicted of “an offense with a presumptive prison sentence or the probationer used a firearm,” the court is required to revoke probation and execute the sentence unless it makes written findings indicating that mitigating factors justify continuing the stay. The rule refers only to particular offenses; it does not refer to characteristics of the offender or to activities of the prosecutor.

3. J.K. contends that because mitigating factors that justified continuing the stay existed as a matter of law, the district court erred in revoking his probation under Minn.Stat. § 260B.130, subd. 5. We disagree. The district court found:

[J.K.’s] counsel urged the court to consider certain circumstances as mitigating factors which would justify continuing the stay of the eighty-one month prison commitment. Specifically, counsel stated that when [J.K.] was returned to the community his family was unable to provide enough structure for him. This was due in part to a language barrier and the fact that [J.K’s] family has chosen' to stay within their Hmong community. [J.K.] has also chosen to stay very much within the Hmong community and so, “it is hard for him to get motivated to go out and do what he has to do on his own.” Counsel also characterized [J.K.’s] probation violations as “technical” and emphasized that [J.K.] has not been cited for any new offenses. The court finds that the aforementioned circumstances do not rise to the level of persuasive mitigating factors which would justify continuation of [J.K.’s] EJJ status or the stay of the eighty-one month sentence.

Given the numerous and varied treatment services made available to J.K. and J.K’s continuing refusal to comply with probation conditions, we cannot conclude that the district court erred when it found that J.K’s family circumstances and the “technical” nature of his violations did not constitute mitigating factors.

DECISION

The district court did not err in revoking J.K’s probation and executing the 81-month adult prison sentence.

Affirmed.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 33
    Robert DOUVILLE, Plaintiff and Appellant, v. Russ CHRISTENSEN, Steve Hartman, and Donald Randall, in their capacity as Township Supervisors of Brule Township and Milo Speckels, Robert Feltman, and John Glaus, in their capacity as Township Supervisors of Chamberlain, Township, Brule County, South Dakota, Defendants and Appellees.
    No. 21908.
    Supreme Court of South Dakota.
    Argued Jan. 8, 2002.
    Decided March 6, 2002.

      John R. Steele of Steele and Steele, P.C., Plankinton, for plaintiff and appellant.
    J.M. Grossenburg, Winner, for defendants and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] Robert Douville (Douville), a resident of Chamberlain, South Dakota, seeks a writ of mandamus against Chamberlain and Brule Townships for the removal of an earthen dam obstructing a section line right-of-way located on the border between the two townships. We reverse the trial court’s denial of the writ.

FACTS AND PROCEDURE

[¶ 2.] The section line right-of-way at issue in this case is approximately one and one-half miles in length and is located between Brule and Chamberlain Townships. The section line extends westward to the edge of the Missouri River (Lake Francis Case). It is undisputed that neither township has ever constructed or maintained any kind of roadbed on this portion of the section line. The section line remains unimproved and impassable by motor vehicle, on horseback or by foot because of an earthen dam with impounded water located on and running perpendicular to the right-of-way.

[¶ 3.] The dam was built in 1947, with funding provided by the federal government, and supplies water for cattle located on the land. Alvin Reuer (Reuer), the current owner, purchased the property in 1964. On August 24, 1982, both Brule and Chamberlain Townships each purported to grant Reuer conditional easements to construct a dam. The easements stipulated that they would continue in effect only until such time as “... the Board is required by operation of law to open and maintain said property line as an actual road.”

[¶ 4.] Douville seeks a writ of mandamus compelling the townships to remove the dam from the section line. The circuit court, however, denied the writ. It concluded “[a] township has no duty pursuant to SDCL 31-32-9 to remove obstructions from section lines that have not been improved or altered from their natural state for the purpose of vehicle travel.” Dou-ville raises the following issue for appeal:

Whether a township has a legal duty to remove man-made obstructions from an unimproved section line right-of-way.

STANDARD OF REVIEW

[¶ 5.] The grant or denial of a writ of mandamus is discretionary. Willoughby v. Grim, 1998 SD 68, ¶ 6, 581 N.W.2d 165, 167 (citations omitted). Therefore, we review denial of a writ of mandamus under an abuse of discretion standard. Id.

[¶ 6.] We review statutory interpretation de novo, giving no deference to the interpretation of the trial court. Furthermore,

[s]ince statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the [Ljegislature did not intend an absurd or unreasonable result. When the question is which of two enactments the [Ljegislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611.

ANALYSIS AND DECISION

[¶ 7.] “To prevail in seeking a writ of mandamus, [al petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” S.D. Trucking Ass’n, Inc. v. S.D. Dep’t of Transp., 305 N.W.2d 682, 684 (S.D.1981) (citations omitted). Mandamus is a remedy granted under exceptional circumstances:

to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.

SDCL 21-29-1. Therefore, the crux of this case is whether Brule and Chamberlain Townships owe Douville a duty to maintain an unimproved section line right-of-way by removing a man-made dam obstructing public passage.

[¶ 8.] Whether a township has a legal duty to remove man-made obstructions from an unimproved section line right-of-way.

[¶ 9.] A township’s duty of maintenance is imposed by statute. The language of SDCL 31-32-9 provides:

The governing body or board having charge of any street, road, or highway shall cause rock, stone, glass, or other obstruction placed in such street, road, or highway, to be removed therefrom, or in the event that the same is flooded by irrigation water, such street, road, or highway shall be repaired and the first and second class municipality, township, or county, as the case may be, shall be entitled to recover of any person placing such obstruction in such street, road, or highway, or allowing the water to flow upon the same, the amount necessarily expended in the removal or repair thereof and such action may be commenced in any court in the county having jurisdiction thereof. This section shall not apply to the placing of rock or stone in the streets, roads, or highways temporarily for building purposes.

(emphasis added). Giving this statute its “plain meaning and effect” as required under the cannons of statutory construction, this provision clearly contemplates a duty of the township to remove obstructions or water artificially placed upon a street, road or highway. See Welsh v. Centerville Township, 1999 SD 73, ¶ 11, 595 N.W.2d 622, 625 (citations omitted). But in order to discern the extent of a township’s duty in this case, it is first necessary to determine whether an unimproved section line falls within the definition of a “street, road, or highway.”

[¶ 10.] Douville claims that an unimproved section line is a “highway” and therefore must be maintained by the township under SDCL 31-32-9. The term “highway” is defined as “[ejvery way or place of whatever nature open to the public, as a matter of right, for purposes of vehicular travel ....” SDCL 31-1-1. Unimproved section lines are not included within this section because they are not “open to the public, as a matter of right, for purposes of vehicular travel.” See Pederson v. Canton Township, 72 S.D. 332, 34 N.W.2d 172 (1948).

[¶ 11.] The Legislature, however, chose to specifically define all section lines as “highways” in another section, regardless of whether they are improved for the purpose of vehicular travel. In 1871, the Dakota Territory Legislature passed an act, Chap 33, Laws 1870-1871, which accepted Congress’s dedication of all section lines as highways. Subsequently, the South Dakota Code incorporated this legislative determination stating:

There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal.

SDCL 31-18-1. In comparing the definitions of SDCL 31-1-1 and 31-18-1, the more specific statute must control. See Martinmaas, 2000 SD 85 at ¶ 49, 612 N.W.2d at 611. Moreover, it is illogical to claim that a “public highway” is somehow not a “highway.” This Court has held that the Legislature, by the act of 1871, meant the term “public highway” to have its ordinary meaning. Lawrence, 21 S.D. at 583, 114 N.W. at 710. It is “more than a right of way over which a public highway may be established, [ ] it is a passage or road which ‘every citizen has a right to use.’ ” Id. Thus, these section line rights-of-way cannot be lawfully obstructed by private citizens absent legal authority do so. Id.; K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 532 (S.D.1983). See, e.g., SDCL 31-25-1.1 (allowing for placement of fences on section line that has not been “altered from its natural state in any way for the purpose of facilitating vehicular passage,” so long as gates are present to permit suitable public access).

[¶ 12.] No affirmative action is necessary to open a section line for public use. The general public’s right to pass, by foot or otherwise, is not diminished merely because townships are not required to improve every section line for vehicular travel. As noted above, section lines, by operation of law, are open to passage by the general public. While the Legislature did not impose upon townships the duty to open, improve, and maintain every section line for the purpose of vehicular travel, it nonetheless requires townships to act as trustees in guarding section line rights-of-way for free public access.

[¶ 13.] A township does not have a roving duty to inspect every unimproved and un-vacated section line for possible natural and man-made obstructions. But it does have a duty, upon reasonable notice, to remove man-made obstructions interfering with a public right-of-way. This Court has previously held that a township’s duty to maintain its improved roads is ministerial and therefore, the proper subject of mandamus. See Willoughby, 1998 SD 68 at ¶ 8, 581 N.W.2d at 168. We now extend this holding to include, upon reasonable notice or demand, the duty of a township to remove man-made obstructions from unimproved section lines. This is not to say townships must open, improve, and maintain a passable road on every section line; they are merely required to return that section line to its natural state when asked to do so. We find that Douville has a clear legal right to access the unimproved section line and that Brule and Chamberlain Townships have a duty to remove artificially placed obstructions that interfere with that right. The circuit court’s decision was an abuse of discretion. Therefore, we reverse its denial of the writ of mandamus and remand for further proceedings consistent with this opinion.

[¶ 14.] SABERS, AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, concur.

      . Because the term “open” has been assigned multiple definitions in our case law, we have chosen to use the more specific description of “unimproved” as compared to "improved.” See, e.g., Lawrence v. Ewert, 21 S.D. 580, 583, 114 N.W. 709, 710 (1908) (holding no affirmative action on part of township necessary to "establish or open” section line highway to public travel); Keen v. Fairview Township, 8 S.D. 558, 564, 67 N.W. 623, 625 (1896) (holding that while a public highway exists on every section line, no road is present unless "opened or established” by township). For the purposes of this case, "improved” is defined as "intentional enhancement of the natural terrain’s utility for travel or [an] adaptation which will permit travel where it was not previously possible.” State v. Tracy, 539 N.W.2d 327, 331 (S.D.1995) (citing Black's Law Dictionary 757 (6th ed. 1990)).

      . See 43 USCA § 932.

      . Where an adjacent landowner unlawfully restricts this passage, he or she may also be liable in a nuisance action. See SDCL 21 — 10— 3 (defining public nuisance); SDCL 21-10-9 (stating remedy in civil action for public nuisance may be maintained “by any public body or ... by any private person if [the nuisance] is specially injurious to himself.”). See also Saetz v. Heiser, 240 N.W.2d 67, 72 (N.D.1976) (holding private party entitled to removal of fence across section line where no gate was present and obstruction deprived public of its right to free passage). This action is unaffected by the length of time that the nuisance has been maintained. See, e.g., State By and Through Dep’t of Transp. v. Garvin, 456 N.W.2d 779, 782 (S.D.1990) (holding lapse of time does not preclude injunction against party maintaining public nuisance for over 10 years); City of Rapid City v. Hoogterp, 85 S.D. 176, 179 N.W.2d 15 (1970) (upholding injunction against portion of building encroaching on public right-of-way for over 50 years).

      . Whether a section line is opened, in the sense that it is improved by constructing a road for vehicular travel, is discretionary and therefore, not the proper subject for mandamus. See SDCL 31-3-6; 31-3-22; 31-13-17; Willoughby, 1998 SD 68 at ¶ 8, 581 N.W.2d at 168.


author: LOVRIEN, Circuit Justice.

text:
    2002 SD 34
    SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant, v. HERITAGE MUTUAL INSURANCE COMPANY, Appellee,
    No. 21841.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided March 6, 2002.
    Mark Barnett, Attorney General, Naomi Cromwell, Assistant Attorney General, Pierre, for appellant.
    J.G. Shultz of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for appellee.
   LOVRIEN, Circuit Justice.

[¶ 1.] South Dakota Subsequent Injury Fund (SIF) appeals the circuit court’s judgment affirming Department of Labor’s (Department) determination that Heritage Mutual Insurance Company (Heritage), was entitled to full compensation from SIF for the subsequent injuries of William Belt and Edward McGee, based on the conclusion that the 1984 version of SDCL 62-4-34 governs the rights and duties of the parties based upon the date of injury. We affirm.

SUBSEQUENT INJURY FUND

[¶ 2.] A brief review of the history of SIF would be helpful before we turn to the facts of each claim. SIF is a fund created under South Dakota workers’ compensation laws to encourage employers to hire or retain disabled or handicapped workers. Sioux Falls Sch. Dist. v. South Dakota Subsequent Injury Fund, 504 N.W.2d 107, 107 (S.D.1993) (citing 2 Larson, Workers’ Compensation Law, § 59.30 (1992)). When a previously injured employee sustains additional injury, an employer may receive reimbursement from SIF for excess compensation paid to the employee which would not have been necessary had the employee not had a preexisting injury. Id. (citing SDCL 62-4-34). The fund is financed by assessments of workers’ compensation insurance carriers and self-insurers. Id. (citing SDCL 62-4-35). “To be eligible for recovery from the fund, an employer must be able to establish by written record that it had knowledge of the preexisting disability at the time of hiring the injured employee.” Oesterreich v. Canton-Inwood Hosp., 511 N.W.2d 824, 827 (S.D.1994).

[¶ 3.] In 1978 the legislature adopted SDCL 62-4-34.1 as procedural guidelines and as the statute of limitations for the implementation of the fund. The 1978 version provided:

Any claim against the subsequent injury fund must be filed with the department of labor within two years from the date of the subsequent injury. The department shall conduct an investigation and make a determination on the claim within thirty days.

In 1992 the legislature amended SDCL 62^-34.1 to provide:

Any claim against the subsequent injury fund shall be filed with the division of insurance within ninety days from the date of the final decision by the department that a compensable injury exists resulting in additional permanent partial or permanent total disability, or approval by the department of settlement between the parties. No claim may be filed prior to a decision or approval of settlement from the department. The division shall conduct an investigation and make a decision on the claim within thirty days of the filing of a complete claim as set forth in § 62-4-34.4 or within a time agreed upon between the claimant and the department.

[¶ 4.] Before the 1992 amendment of SDCL 62-4-34.1, a claim had to be filed with the SIF within two years from the date of injury and had to be resolved within thirty days of submission. This created a procedural quagmire because often a claim had to be submitted to SIF and decided before Department even acted on the underlying workers’ compensation claim. The purpose of the 1992 amendment to SDCL 62^1-34.1 was to avoid the filing of SIF claims until the workers’ compensation system had resolved the essential issues.

[¶ 5.] In 1995 the legislature significantly amended SDCL 62-4-34. The 1984 version of 62-4-34 allowed the employer to be reimbursed fully from SIF. In 1995 the amended version of 62-4-34 changed the compensation amount to two-thirds.

[¶ 6.] Finally in 1999 the legislature eliminated the SIF and repealed the statutes authorizing the SIF. Also repealed were SDCL 62-4-34 through 62-4-34.6 and 62-4-35 through 62^-36.3. SL 1999 ch 262, §§ 2-11. That same year the legislature enacted SDCL 62-4-34.7, providing rules for the disposition of the fund balance. The basic facts of these consolidated cases are not disputed.

FACTS

Heritage Mutual Insurance Company/Belt

[¶ 7.] William Belt has been employed by Automated Maintenance since 1990. Belt suffered a rotator cuff tear in June 1991 and underwent surgery to repair the injury. He returned to work but in July 1992, developed carpal tunnel syndrome, undergoing surgery in January 1993. The carpal tunnel injury resulted in a 5 percent permanent partial impairment to each upper extremity. As a result, Belt received $1,808.20 in permanent partial disability benefits. Heritage paid $32,499.04 in benefits to Belt based upon his carpal tunnel condition.

[¶ 8.] Heritage notified SIF of a claim based upon carpal tunnel surgeries on May 17, 1996. Heritage made a claim for an amount based upon the 1984 version of SDCL 62-4-34. SIF issued findings of fact and conclusions of law awarding reimbursement using the two-thirds calculation available based upon the 1995 version of SDCL 62^1-34. Heritage filed a petition for hearing requesting payment of the shortfall plus prejudgment interest. The parties filed competing motions for summary judgment. Department granted Heritage’s motion for summary judgment, awarding Heritage full reimbursement. Department concluded that the law in ef-feet when the injury occurred governed the rights of the parties.

Heritage Mutual Insurance Company/McGee

[¶ 9.] Edward McGee suffered a back injury in 1983 while working for a construction company in Rapid City. By 1987 McGee was diagnosed as having a 5 percent permanent partial impairment. This injury resulted in surgery in 1993 and a 17 percent permanent partial impairment, as diagnosed in 1995. As a result of these back injuries, McGee claimed to be unable to work and offered support for his claim of permanent total disability. Heritage settled the case stemming from the 1993 injury and paid a total of $103,064.54 to McGee.

[¶ 10.] In 1999 Heritage notified SIF of a claim based upon the 1993 back injury and surgery. Heritage made a claim for an amount based upon the 1984 version of SDCL 62-4-34. SIF issued findings of fact and conclusions of law awarding reimbursement using the two-thirds calculation available based upon the 1995 version of SDCL 62-4-34. Based upon its analysis using the two-thirds figure, SIF reimbursed Heritage in the amount of $68,709,-70; this is $23,001.91 less than the amount requested by Heritage.

[¶ 11.] Heritage filed a petition for hearing requesting payment of the shortfall plus prejudgment interest. Again, both parties filed motions for summary judgment. Department awarded full reimbursement as requested by Heritage. Department concluded in its decision that the law in effect when the injury occurred governed the rights of the parties.

[¶ 12.] SIF appealed the Department’s rulings in both cases to the circuit court. The court consolidated the cases and affirmed the actions of Department. SIF appeals the judgment of affirmance of the circuit court. SIF raises one issue on appeal: which version of SDCL 62^L-34 applies to the claims in question?

STANDARD OF REVIEW

[¶ 13.] The issue on review is a question of law. When the issue is a question of law, the decisions of the administrative agency and the circuit court are fully reviewable. In re Tieszen Mem’l Home, Inc., 343 N.W.2d 97, 98 (S.D.1984). “Questions of law are subject to de novo review; no deference is given to an agency’s conclusion of law.” Enger v. FMC, 2000 SD 48, ¶ 7, 609 N.W.2d 132, 134 (citing Thomas v. Custer State Hosp., 511 N.W.2d 576, 579 (S.D.1994)).

ANALYSIS AND DECISION

[¶ 14.] Is the applicable version of SDCL 62-4-34 for claims of reimbursement to the Subsequent Injury Fund determined by the law in effect on the date of injury or the law in effect on the date of notice of claim?

[¶ 15.] This Court has consistently ruled that in workers’ compensation cases, “the law in effect when the injury occurred governs the rights of the parties.” Faircloth v. Raven Indus., Inc., 2000 SD 158, ¶ 5, 620 N.W.2d 198, 200; Shykes v. Rapid City Hilton Inn, 2000 SD 123, ¶ 25, 616 N.W.2d 493, 499; Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 9, 557 N.W.2d 764, 766; Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395 (citing Helms v. Lynns, Inc., 1996 SD 8, ¶ 11, 542 N.W.2d 764, 766). See also West v. John Morrell & Co., 460 N.W.2d 745, 747 (S.D.1990); Lyons v. Lederle Lab., 440 N.W.2d 769, 770 (S.D.1989); Wold v. Meilman Food Indus., Inc., 269 N.W.2d 112, 114 n. 1 (S.D.1978).

[¶ 16.] SIF, however, argues that SIF is not part of the workers’ compensation system and is not bound by that rule. Rather, SIF argues that the law in effect when a claim comes into existence governs the rights of employers to compensation from SIF. SIF argues that as the result of the 1992 amendment to SDCL 62^4-34.1, no claim against SIF can come into existence until a final decision is made by Department on the underlying workers’ compensation claim. Thus, SIF argues Department and the circuit court erred by applying the 1984 version of SDCL 62-4-34 (date of injury) rather than the 1995 version (date of claim).

[¶ 17.] Is SIF part of the workers’ compensation system? We conclude that it is. We have previously determined the origins of SIF and its legislative purpose. “The South Dakota Subsequent Injury Fund (SIF) is a fund created under South Dakota workers’ compensation law to encourage employers to hire or retain disabled or handicapped workers.” Sioux Falls Sch. Dist., 504 N.W.2d at 107. “The fund is financed by assessments of workers’ compensation insurance carriers and self-insurers.” Id. (citing SDCL 62-4-35).

[¶ 18.] SIF argues that because the fund specifically compensates employers, not workers, it is not a workers’ compensation scheme. Workers’ compensation laws are in place to benefit workers, but not always in monetary forms. SIF was created to benefit workers, not to benefit employers. Employers are given a monetary incentive under SIF, but the purpose of SIF is a benefit for workers.

The Subsequent Injury fund was set up to assist workers with some type of preexisting disability, condition or handicap, to obtain employment notwithstanding the liability exposure of an employer who would hire such worker in the event of a second injury.

South Dakota Subsequent Injury Fund v. Cas. Reciprocal Exch., 1999 SD 2, ¶ 14, 589 N.W.2d 206, 208 (citing 5 Larson, Workers’ Compensation Law, § 59.30 (1998)).

[¶ 19.] SIF is clearly part of the workers’ compensation system and bound by its general rules. If the legislature had intended for SIF to fall outside the workers’ compensation system, it could have made a specific exemption for SIF. It did not. “[W]e recognize that the Legislature knows how to exempt or include items in its statutes.” State v. Young, 2001 SD 76, ¶ 12, 630 N.W.2d 85, 89. See also Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 10, 545 N.W.2d 834, 836 (excluding a person’s right to collect workers’ compensation benefits); Jasper v. Smith, 540 N.W.2d 399, 403 (S.D.1995) (exempting property from attachment of a lien); Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107, 124 (S.D.1993) (including an entity as a beneficiary).

[¶ 20.] What version of SDCL 62-4-34, then, should apply to the claims here: the 1984 version in effect at the time of each subsequent injury or the 1995 version in effect when each claim was made to the SIF? As noted earlier, the law in effect when the injury occurred governs the rights and obligations of both the employer and worker. The amount of compensation a worker is entitled to receive for a subsequent injury is determined by the statutes in effect at the time of that injury. Similarly the amount of compensation an employer must pay, for both the normal and excess portion of a worker’s subsequent injury, is determined by the statutes in effect at the time of that subsequent injury. On what basis, then, should reimbursement by SIF to an employer, for compensation the employer has paid to a worker for the excess portion of worker’s subsequent injury, be determined other than by the statutes in effect when the subsequent injury occurred?

[¶ 21.] The purpose of the SIF is to encourage an employer to hire a previously injured worker by allowing the employer to receive reimbursement from the SIF for excess compensation paid for that worker’s subsequent injury. We conclude that for the SIF to serve its intended statutory purpose, the right of the employer to be reimbursed by the SIF for excess compensation paid to the worker must necessarily (1) come into existence at the time of the worker’s subsequent injury when the employer’s potential liability for both the normal and excess portion of a worker’s injury comes into existence; and (2) be determined by the statutes in effect at that time. We do not read the 1992 amendment to SDCL 62-4-34.1 to alter this conclusion. It does nothing more than specify the time frame within which the already existing claim must be filed by an employer.

[¶ 22.] Accordingly, we hold that the date of injury, not the date of notice of claim, determines which version of 62-4-34 is to be applied to determine the amount of reimbursement owed Heritage by SIF. Department properly applied the 1984 version of 62-4-34 to each claim. The judgment of the circuit court, upholding these rulings by Department is affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, concur.

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

      . SDCL 62-4-34 (1984):
      If an employee who has previously sustained an injury which resulted in disability from any cause or origin irrespective of compensability, receives a subsequent com-pensable injury resulting in additional permanent partial or permanent total disability so that the degree or percentage of disability caused by the combined injuries is substantially greater than that which resulted from the last injuiy, considered alone; and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer shall pay all medical and hospital expenses and compensation provided by this title. The employer shall be reimbursed from the ‘subsequent injury fund' for all compensation, medical and hospital expenses, paid in excess of the compensation paid for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. If the subsequent compensable injury of the employee results in the death of the employee and it has been determined that the death would not have occurred except for the preexisting disability, the employer shall pay all compensation provided by this title. The employer shall be reimbursed from the ‘subsequent injury fund' for all compensation paid in excess of the compensation paid beyond the period of the first three hundred twelve weeks.

      . SDCL 62-4-34 (1995):
      If an employee who has previously sustained an injury, or suffers from a preexisting condition, receives a subsequent compensable injury resulting in additional permanent partial or permanent total disability so that the degree or percentage of disability caused by the combination of the subsequent injury and the preexisting injury or condition is substantially greater than that which resulted from the last injury, considered alone, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer shall pay all medical and hospital expenses and compensation provided by this title. The employer shall be reimbursed from the ‘subsequent injury fund' for two-thirds of all compensation, medical and hospital expenses paid to or on behalf of the injured employee due to the subsequent injury. If the subsequent compensa-ble injury of the employee results in the death of the employee and it has been determined that the death would not have occurred except for the preexisting disability, the employer shall pay all compensation provided by this title.

      . In 1995, the legislature repealed SDCL 62-4-34.3. SL 1995, ch 97, § 1.

      . A final decision would either be a determination that a compensable injury exists resulting in additional permanent partial or permanent total disability, or approval of settlement between the parties. SDCL 62-4-34.1 (1992).

      . Included in the workers’ compensation laws is a definition of "Temporary disability, total or partial.” SDCL 62-1-1(8). The definition is: "the time beginning on the date of injury, subject to the limitations set forth in § 62-4-2, and continuing until the employee attains complete recovery or until a specific loss becomes ascertainable, whichever comes first.” Implicit in the definition is the fact that a disability begins "on the date of injury.” Subsequent injuries are not exempted from this definition.

      . Excess compensation is compensation which would not have been necessary had the worker not had the pre-existing injury. SDCL 62-4-34 (1984).

      . To conclude, as SIF would have us do, that an employer has no claim against the SIF until the Department of Labor makes a final decision would be to also conclude that a worker has no claim against the employer until Department makes a final decision. This we are unwilling to do.