text:
    2008 SD 27
    Rod BICKNER and, Erin Bickner, Plaintiffs and Appellants, v. Raymond TOWNSHIP, a political subdivision of the County of Clark, State of South Dakota, Defendant and Appellee.
    No. 24260.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2007.
    Decided April 02, 2008.

      Paul J. Gillette of Gillette, Battey & Gillette, P.C., Redfield, South Dakota, Attorneys for plaintiffs and appellants.
    Melissa E. Neville of Bantz, Gosch & Cremer, L.L.C., Aberdeen, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Rod Bickner was injured when his car failed to negotiate a sharp turn on a gravel township road. He brought suit against Raymond Township, claiming that it breached its statutory duties under SDCL 31-32-10 and SDCL 31-28-6 in failing to have adequate warning signs and guardrails for the dangerous turn in the road. The circuit court granted summary judgment for the Township. Bickner appeals, and we affirm.

Background

[¶ 2.] On July 12, 2001, at 3:50 a.m., Rod Bickner was driving his vehicle home from Watertown, South Dakota, where he was working. His destination was Doland, South Dakota. The road he usually traveled, Highway 212, was closed for maintenance. He decided to take an alternate route rather than the detour. He traveled on a gravel road unfamiliar to him. The gravel road is located in Raymond Township.

[¶ 3.] As he headed west toward Do-land, he came upon a ninety-degree, right-hand curve in the road. He did not expect this curve, and there were no warning signs. He was unable to make the curve and lost control of his vehicle. He slid off the west side of the road. The car rolled one time. He was seriously injured.

[¶ 4.] Bickner brought suit against the Township. He alleged that sometime before his accident a warning sign existed and the Township failed to repair or replace the sign. He also averred that if no sign existed the Township breached its statutory duty to erect warning signs and guardrails for the ninety-degree curve in the road. The Township moved for summary judgment asserting that no sign warning of the curve ever existed and there is no statutory duty on the part of the Township to erect a sign. After a hearing, the circuit court granted summary judgment. Bickner appeals.

Analysis and Decision

[¶ 5.] According to Bickner, two statutes establish his claim: (1) SDCL 31-32-10 specifically requires townships to maintain and repair defects in township roads, and (2) SDCL 31-28-6 mandates that townships post signs at points of danger along township roads. SDCL 31-32-10 provides:

If any highway, culvert, or bridge is damaged by flood, fire or other cause, to the extent that it endangers the safety of public travel, the governing body responsible for the maintenance of such highway, culvert, or bridge, shall within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger.

(Emphasis added). Under this statute, Bickner asserts that the Township road was damaged, or in a defective condition, after the Township removed a railroad warning sign and did not replace it with a sign warning of the curve. He believes a duty exists because a railroad crossing and a ninety-degree curve are inherently dangerous conditions. Once the railroad was removed along with the railroad warning sign, Bickner avers that a dangerous curve still existed, and the Township had a duty to replace the railroad sign with a sign warning of the curve.

[¶ 6.] Bickner further argues that the Township had a duty to erect a warning sign in the first place, regardless of the railroad sign. He relies on SDCL 31-28-6, which states,

The public board or officer whose duty it is to repair or maintain any public highway shall erect and maintain at points in conformity with standard uniform traffic control practices on each side of any sharp turn, blind crossing, or other point of danger on such highway, except railway crossings marked as required in § 31-28-7, a substantial and conspicuous warning sign, which sign shall be on the right-hand side of the highway approaching such point of danger.

(Emphasis added). Because the Township did not follow the “standard uniform traffic control practices” and erect a “substantial and conspicuous” sign warning of the “sharp turn,” Bickner asserts that the Township breached its statutory duty. In support of his argument, he points to the use of “shall” in the statute and the language of the Manual on Uniform Traffic Control Devices (MUTCD), which South Dakota has adopted.

[¶ 7.] In response, the Township claims that, while SDCL 31-32-10 might be implicated if a sign warning of the curve existed before the accident, in this case there was no breach because the Township never erected such warning sign. The Township lists a line of cases holding that “a failure to install adequate signs warning of danger incident to a sharp curve is not a violation under SDCL 31-32-10[.]” See Gulbranson v. Flandreau Township, 458 N.W.2d 361, 362 (S.D.1990); see also Fritz v. Howard Township, 1997 SD 122, ¶ 15, n. 3, 570 N.W.2d 240, 243 n. 3; Wilson v. Hogan, 473 N.W.2d 492, 496 (S.D.1991); Kiel v. DeSmet Township, 90 S.D. 492, 496, 242 N.W.2d 153, 155 (1976) (“failure of a governing board or body to install a road sign in the first instance does not give rise to a cause of action under SDCL 31-32-10”).

[¶ 8.] The Township further asserts that summary judgment was properly granted on Bickner’s claim under SDCL 31-28-6. According to the Township, based on this Court’s past cases, SDCL 31-32-11 does not create a cause of action for a breach of the duties in SDCL 31-28-6. See Fritz, 1997 SD 122, ¶ 15 n. 3, 570 N.W.2d at 243 n. 3; Wilson, 473 N.W.2d at 496; Gulbranson, 458 N.W.2d at 362; Zens v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 386 N.W.2d 475, 478 (S.D.1986); Kiel, 90 S.D. at 496, 242 N.W.2d at 155. Therefore, the Township asserts that it is protected from suit under SDCL 31-28-6 by the doctrine of sovereign immunity-

[¶ 9.] Although we previously held that SDCL 31-32-11 waived sovereign immunity and established a cause of action for a breach under SDCL 31-32-10, this statute was repealed in 1986. See Wilson, 473 N.W.2d at 496. Therefore, whether the Township can be liable under SDCL 31-32-10 or SDCL 31-28-6 depends on whether it is protected by sovereign immunity. Neither party addressed whether sovereign immunity applies with respect to the Township’s duties under SDCL 31-21-10. Moreover, although the circuit court granted summary judgment, its decision was not based on the doctrine of sovereign immunity.

[¶ 10.] Whether sovereign immunity applies is a question of law. Hall v. City of Watertown ex rel. City of Watertown Police Dept., 2001 SD 137, ¶ 4, 636 N.W.2d 686, 688 (citing Cromwell v. Rapid City Police Dept., 2001 SD 100, ¶ 8, 632 N.W.2d 20, 23). Sovereign immunity is the right of public entities to be free from liability for tort claims unless waived by legislative enactment. Public Entity Pool for Liab. v. Score, 2003 SD 17, ¶ 7, n. 3, 658 N.W.2d 64, 67 n. 3 (citing Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 636 (1999) (citations omitted)). In this case, immunity has not been waived by any legislation. The question, therefore, ordinarily becomes whether the duties under SDCL 31-32-10 and SDCL 31-28-6 are ministerial or discretionary. This, too, is a question of law. Hansen v. S.D. Dept. of Trans., 1998 SD 109, ¶ 18, 584 N.W.2d 881, 885 (citations omitted).

[¶ 11.] With respect to the duties under SDCL 31-32-10, we need not decide whether they are ministerial or discretionary here because those duties are not implicated in the facts of this case. Nothing in the record establishes that the township road was damaged or in a defective condition. A damage or defect can exist when a governing board or body fails to repair or replace a sign warning of a danger or defect, but the sign must have existed before the accident. Fritz, 1997 SD 122, ¶ 15, n. 3, 570 N.W.2d at 243 n. 3; Gulbranson, 458 N.W.2d at 362; Zens, 386 N.W.2d at 478; Kiel, 90 S.D. at 496, 242 N.W.2d at 155.

[¶ 12.] Bickner insists there is a material issue of fact in dispute on whether a sign warning of the curve existed before the accident. But he relies only on general allegations and provides no evidence to support his claim. In circuit court, he failed to respond by means of affidavit or otherwise to refute the evidence provided by the Township showing that a warning sign for a sharp turn never existed. See SDCL 15-6-56(e); Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (citing Hughes-Johnson Co. v. Dakota Midland Hosp., 86 S.D. 361, 195 N.W.2d 519, 521 (S.D.1972)). Nevertheless, he maintains that his cause of action should not be dismissed because there is evidence that “a sign” existed before the accident, which was not replaced. See id. (citing Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994) (more is needed than “[Unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact”) (citing Home Fed. Sav. & Loan v. First Nat’l Bank, 405 N.W.2d 655 (S.D.1987))).

[¶ 13.] The duty under SDCL 31-28-10 to warn of a curve in the road is not created and a defect does not exist simply because a railroad crossing sign was present sometime before the accident and was removed when the rails were removed. The removed railroad sign would not have warned Bickner that a ninety-degree curve was ahead, and therefore, SDCL 31-32-10 is inapposite. The court did not err when it granted summary judgment on this claim.

[¶ 14.] The Township also cannot be held liable under SDCL 31-28-6 because the Township’s decision to erect a warning sign in the first place is protected by the doctrine of sovereign immunity. As this Court recognized in Hansen, the initial decision to erect warning signs is discretionary. 1998 SD 109, ¶ 31, 584 N.W.2d at 888. This statute does not establish a “hard and fast rule” on the course of conduct the Township was required to take. See id. ¶ 28 (quoting Kyllo v. Panzer, 535 N.W.2d 896, 901-02 (S.D.1995)). Although the statute refers to the “standard uniform traffic control practices” and it is undisputed that South Dakota has adopted the MUTCD, Bickner cites no provision in the MUTCD that specifically requires a township to erect a warning sign in these circumstances. See id.

[¶ 15.] The provisions cited by Bickner state, “Horizontal alignment signs may be used where engineering judgment indicates a need to inform the road user of a change in the horizontal adjustment of the roadway” and after “engineering judgment determines a need for a horizontal alignment sign,” a certain sign “shall be used.” (Emphasis added). This language accommodates an exercise of discretion. Kyllo, 535 N.W.2d at 901-02 n. 9 (citing Black’s Law Dictionary 996 (1990)). Bickner concedes that there exists “a measure of discretion when determining when warning signs are necessary and that failing to erect signs is generally not actionable.” Summary judgment was properly granted on this claim.

[¶ 16.] Affirmed.

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

      . Under our familiar standard, summary judgment is properly granted if there are no material issues of fact in dispute and the law was correctly applied. Jones v. Siouxland Surgery Ctr. Ltd. Partnership, 2006 SD 97, ¶ 7, 724 N.W.2d 340, 343.

      . Before its repeal, SDCL 31-32-11 provided in part:
      Any person who shall sustain injury to person or property by reason of any violation of § 31-32-10 shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.
      This Court, in Hansen v. S.D. Dept. of Trans., held that sovereign immunity protects the Secretary of Transportation from liability under SDCL 31-32-10. 1998 SD 109, ¶¶ 26-28, 584 N.W.2d 881, 887.


source: Caselaw Access Project

author: VAITHESWARAN, J.

license: Public Domain

text:
    John Martin FARRELL, Plaintiff v. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.
    No. 07-0283.
    Court of Appeals of Iowa.
    Feb. 13, 2008.

      Eric Borseth of Borseth Law Office, Al-toona, for appellant.
    Barbara Davis, West Des Moines, for appellee Iowa District Court.
    Catherine K. Levine, Des Moines, for appellee Janna K. Farrell.
    Considered by SACKETT, C.J., and VAITHESWARAN and BAKER, JJ.
   VAITHESWARAN, J.

John Farrell, a divorced father of two children, refused to pay court-ordered child support and refused to pay certain expenses associated with the children’s extracurricular sports activities. He did so “to get his ex-wife’s attention over joint parenting issues.”

John’s ex-wife, Janna Farrell, applied to have John held in contempt. After the application was filed, John satisfied his child support obligation but reiterated his refusal to pay his portion of the extracurricular expenses. The district court first held John in contempt for failing to pay child support when it came due. The court next found John in “default” on the extracurricular expenses and ordered him to pay Janna $372.67. Finally, the court ordered John to pay $750 toward Janna’s trial attorney fees.

John petitioned for a writ of certiorari, challenging all three aspects of the district court’s ruling. The Iowa Supreme Court granted the petition and transferred the appeal to this court for disposition.

Our standard of review in certio-rari actions is well-established. We may only examine “the jurisdiction of the district court and the legality of its actions.” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). An illegality exists “[w]hen the court’s findings of fact are not supported by substantial evidence, or when the court has not applied the law properly.” Ary v. Iowa Dist. Court, 735 N.W.2d 621, 624 (Iowa 2007)

I. Contempt for Failure to Pay Child Support. Iowa Code section 598.23 (2005) provides that a court may cite and punish persons for contempt if they willfully disobey a temporary or final order or decree. “There are two ways in which the contemner may show that a failure to comply with a court order was not willful: (1) the order was indefinite; or (2) the con-temner was unable to perform the act ordered.” Christensen, 578 N.W.2d at 678.

John concedes he “did not pay his support in September and October of 2006” and concedes he did so “willfully.” His admissions amount to substantial evidence in support of the district court’s finding of contempt.

In reaching this conclusion, we note that John makes no argument that the support obligation was indefinite or that he was unable to pay the child support. Id. He simply argues that his actions were justified because he needed to get his wife’s attention on joint parenting issues. This type of self-help measure is not a basis for avoiding a contempt citation. See id. Issues of child support and custody or visitation are independent. Problems with one do not justify withholding of the other. See State ex rel. Wagner v. Wagner, 480 N.W.2d 883, 885 (Iowa 1992) (accepting State’s premise as a general rule that “one parent’s duty of support does not turn on the other parent’s fulfillment of custodial obligations such as visitation.”); Gerk v. Gerk, 259 Iowa 293, 298, 144 N.W.2d 104, 108 (Iowa 1966) (“The parent’s duty to support continues unless removed or shifted in some way recognized by law.”); In re Marriage of Hoksbergen, 587 N.W.2d 490, 492 (Iowa Ct.App.1998) (“The withholding of visitation does not stop an obligation for child support.”). We conclude the district court did not err in holding John in contempt for failing to pay his child support obligation when it came due.

II. Default. We turn to the district court’s determination that John was in default on the payment of extracurricular expenses. The dissolution decree provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in addition to child support, the parties agree to each be responsible for fifty percent (50%) of the costs for the mutually agreed-upon children’s extracurricular activities and lessons including but not limited to registration fees, camp fees, equipment, costs related thereto, etc.

The parties initially agreed to equally divide the expenses associated with the children’s extracurricular activities, but John later backed away from this agreement. After evaluating the decree’s language, the district court stated:

[T]he Decree of Dissolution of Marriage literally affords one party an “out” if they didn’t agree to the participation of the children in sports. While the Court does not find the Respondent to be in contempt, the Court does find Respondent to be in default. As a result, the Respondent should pay the Petitioner four hundred seventy two dollars and sixty seven cents ($472.67) but with a credit of $100 to acknowledge Respondent’s attempt to discipline the children through their sports activities. In the future, the Court highly suggests that the Respondent make his objections about sports involvement known in writing to the Petitioner.

We agree with the district court that John could not be held in contempt of the cited decree provision, as the language of the decree did not definitively require him to pay the expenses associated with the children’s extracurricular sports activities. We reach this conclusion notwithstanding John’s concession that he acted willfully in refusing to pay the extracurricular expenses.

This brings us to the district court’s determination that John was in “default.” We recognize that it is possible for a party to be in default of an obligation without being in contempt. See Iowa Code § 598.24; In re Marriage of Anderson, 451 N.W.2d 187, 189 (Iowa Ct.App.1989). For example, the party may not have acted with the willfulness required to support a finding of contempt, yet be in default on a court-ordered obligation. Id. The problem here is that John was not in default on a court-ordered obligation. As the district court found, the decree specifically allowed him to opt out of paying the extracurricular expenses. Because John was not in default, the district court was not authorized to require payment of the extracurricular expenses. Accordingly, we sustain the writ of certiorari as to the portion of the district court’s order that required John to pay Janna $372.67.

III. Attorney Fees. John next challenges the district court’s award of trial attorney fees. That award is specifically authorized by Iowa Code section 598.24, which states:

When an action for a modification, order to show cause, or contempt of a dissolution ... decree is brought on the grounds that a party to the decree is in default or contempt of the decree, and the court determines that the party is in default or contempt of the decree, the costs of the proceeding, including reasonable attorney fees, may be taxed against that party.

Iowa Code § 598.24. See In re Marriage of McCurnin, 681 N.W.2d 322, 332-333 (Iowa 2004).

As John was found in contempt for nonpayment of two months of child support, the district court was authorized to order the payment of attorney fees.

Janna requests appellate attorney fees of $1000. As John partially prevailed in his challenge to the district court’s ruling, we decline to order the payment of appellate attorney fees.

WRIT ANNULLED IN PART AND SUSTAINED IN PART.


author: VOGEL, P.J. ZIMMER, J.

text:
    STATE of Iowa, Plaintiff-Appellee v. Troy Michael REISETTER, Defendant-Appellant.
    No. 07-0764.
    Court of Appeals of Iowa.
    March 14, 2008.

      Matthew Lindholm of Gourley Rehkem-per & Lindholm, P.L.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, and Randall J. Tilton, County Attorney, for appellee.
    Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.
   VOGEL, P.J.

Troy Reisetter appeals from his conviction for operating while intoxicated, second offense. Reisetter asserts that the district court erred in denying his motion to suppress. Because we agree with Reisetter that the stop of his vehicle was not supported by reasonable suspicion, we reverse and remand.

I.Background Facts and Proceedings

At 2:15 a.m. on September 9, 2006, Hardin County Deputy Sheriff Josh Nelson observed a vehicle traveling approximately a hundred feet in front of him. Suspecting a violation of Iowa Code section 321.388 (2005), which requires that the rear license plate of a vehicle be illuminated, Deputy Nelson activated his lights and initiated a traffic stop. When Deputy Nelson spoke to the driver, Reisetter, he noticed a strong order of alcohol on Reisetter’s breath and that his speech was slow and slurred. Additionally, Deputy Nelson observed that Reisetter’s eyes were bloodshot and watery. Reisetter was cited for an improper registration lamp and arrested for operating while intoxicated. After being transported to the Hardin County Sheriffs Office, and submitting to a breath analysis, it was shown that Reisetter had a blood alcohol content of .119.

The State charged Reisetter with operating while intoxicated, second offense in violation of Iowa Code sections 321 J.2(l)(a) and (b) and 321J.2(2)(b). Reisetter moved to suppress all the evidence asserting the stop of his vehicle was not supported by reasonable suspicion or probable cause. The district court denied the motion and, based on the minutes of evidence, found Reisetter guilty as charged. On appeal, Reisetter contends the district court erroneously denied his motion to suppress.

II. Scope of Review

Reisetter alleges a violation of his constitutional rights; therefore, our review is de novo. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). This review requires us to “make an independent evaluation of the totality of the circumstances as shown by the entire record.” Id. (citations omitted). We give deference to the factual findings of the district court due to its opportunity to evaluate the credibility of the witnesses, but we are not bound by such findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

III. Analysis

The Fourth Amendment to the United States Constitution and article one, section eight of the Iowa Constitution protects individuals against unreasonable searches and seizures by government officials. Kinkead, 570 N.W.2d at 100. The stop of a vehicle and temporary detention of an individual by a law enforcement officer is a seizure under the Fourth Amendment. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d 601 (Iowa 2001), (citing Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996)). Consequently, a general reasonableness standard is imposed on all automobile stops. Id. (citing Whren, 517 U.S. at 810, 116 S.Ct. at 1772, 135 L.Ed.2d at 95).

The stop of an automobile is reasonable if supported by reasonable suspicion that criminal activity has occurred or is occurring. Kinkead, 570 N.W.2d at 100 (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). “When a person challenges a stop on the basis that reasonable suspicion did not exist, the State must show by a preponderance of the evidence that the stopping officer had specific and articulable facts, which taken together with rational inferences from those facts, to reasonably believe criminal activity may have occurred.” State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (citations omitted). An objective standard is used to judge whether the facts known to the officer at the time of the stop would lead a reasonable person to believe the stop was appropriate. Kinkead, 570 N.W.2d at 100 (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906). If the State fails to carry its burden, any evidence obtained through the investigatory stop is inadmissible, regardless of its relevancy or probative value. Id.

Deputy Nelson stopped Reisetter for a violation of Iowa Code section 321.388, which requires that a vehicle’s rear license registration plate be illuminated and “render it clearly legible from a distance of fifty feet to the rear.” This code section very clearly sets forth a specific distance to measure compliance. Iowa Code § 321.388; cf. Iowa Code § 321.38 (requiring a license registration plate to be maintained in a condition to be clearly legible, but not specifying a distance from which the plate must be legible). At the suppression hearing, Deputy Nelson responded to the following question:

Q: And at the time that you decided to stop Mr. Reisetter’s vehicle, you were roughly 100, 120 feet behind his vehicle at the time? A: Well, let me see. I’ll try to give you an estimate distance, but I’d say, you know, three — three or four car lengths, so probably under a hundred feet or close to it I suppose.

Although “car lengths” can be an indicator of distance they can also vary significantly, and there was no follow-up as to how Deputy Nelson would measure these lengths. The State did not introduce any evidence Deputy Nelson observed the license plate within “fifty feet to the rear” prior to stopping Reisetter’s vehicle.

The State argues that because Deputy Nelson “could not see” the license plate from one hundred feet, it was reasonable to stop the vehicle to investigate whether it was visible from fifty feet. However, Iowa Code section 321.388 does not require an illuminated license plate to be legible from any distance greater than fifty feet. Thus, a license plate that is not “visible” from one hundred feet because it appears to lack illumination does not constitute an offense nor give rise to reasonable suspicion that would support an investigatory stop. See State v. Malloy, 453 N.W.2d 243, 245 (Iowa Ct.App.1990) (discussing that reasonable cause to stop the defendant did' not exist because the facts surrounding the stop did not constitute an offense). That is not to say that reasonable suspicion only arises if an officer is within fifty feet and questions compliance with the statute. For example, if the deputy had testified that he observed the plate from something that would approximate fifty feet, and it did not appear to be illuminated so as to be legible, we would likely find the stop reasonable, as it is impossible to measure the precise distance between two moving vehicles. Then, after a legitimate stop, a more accurate measurement could be made to confirm the officer’s reasonable suspicion that the vehicle was not in compliance with the statute-ry length of fifty feet. “The principal function of an investigatory stop is to resolve the ambiguity as to whether criminal activity is afoot.” State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002). However, at the time of this stop, Deputy Nelson was more than twice the statutory distance from Reisetter’s vehicle. Therefore, he was not close enough to justify a stop to “resolve the ambiguity” as to whether “criminal activity [was] afoot.” Id. Without the facts that would support reasonable suspicion that the statutory requirement of fifty feet was being violated, an officer could claim at any distance, that a license plate was not illuminated and therefore justify a stop.

Because the State did not introduce any evidence that Deputy Nelson observed the license plate from a distance that could reasonably approximate fifty feet prior to initiating the traffic stop, there was no reasonable basis to stop Reisetter. The stop was therefore in violation of both the United States and Iowa constitutions which protect people from unreasonable searches and seizures. The district court erred in not granting the motion to suppress. Therefore, we reverse and remand for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

VOGEL, P.J. and MAHAN, J. concur. ZIMMER, J., dissents.

ZIMMER, J.

(dissenting).

I respectfully dissent. An offense is committed under Iowa Code section 321.388 if a registration plate is not visible from fifty feet to the rear. The majority concludes there was no reasonable basis to stop the defendant’s vehicle because the State failed to introduce any evidence that Deputy Nelson observed the defendant’s registration plate from a distance that could reasonably approximate fifty feet prior to initiating a traffic stop. The record reveals Deputy Nelson followed the defendant’s vehicle for approximately one mile around 2:00 a.m. on a country road. From his vantage point behind the vehicle, he observed that the vehicle’s registration plate light was out. After making that observation, he stopped the vehicle. His closer inspection confirmed that the registration plate light was not working at all.

At the suppression hearing, Deputy Nelson was asked how far his vehicle was behind the defendant’s at the time the deputy decided to initiate a stop. Nelson replied: “Well, let me see. I’ll try to give you an estimate distance, but I’d say, you know, three — -three or four car lengths, so probably under a hundred feet or close to it I suppose.” The majority opinion acknowledges that it is difficult “to measure the precise distance between two moving vehicles.” I agree. In this case, it is not surprising that Deputy Nelson was not sure precisely how far his vehicle was behind the defendant’s. I believe the record in this case establishes that he made his observations from no more that 100 feet and perhaps considerably closer. Whatever the exact distance, it is clear that the deputy was close enough to the defendant’s vehicle to observe that the registration plate light was not working. The defendant does not contend that this observation was in error and the trial court affirmatively found that the deputy’s observation was correct. I believe an investigatory stop was objectively reasonable under the circumstances presented here and therefore do not believe the stop violated the United States and Iowa constitutions. I would affirm the district court’s ruling denying the motion to suppress.

      . The State argues that after Officer Nelson stopped Reisetter’s vehicle, he confirmed his "suspicion of a violation of section 321.388.” See State v. Tague, 676 N.W.2d 197, 204 ("Mere suspicion, curiosity, or hunch of criminal activity is not enough.”). We note that the reasonableness of a stop is determined by , the facts available to the officer at the time the officer makes the decision to stop the vehicle. Id.


author: /s/ Paul H. Anderson Associate Justice

text:
    Larry G. HOLTON, Respondent, v. MARATHON PETROLEUM COMPANY, and ACE Insurance Company, administered by The Frank Gates Services Company, Relators, and Abbott Northwestern Hospital, Summit Orthopedics, Ltd., and Anthem Insurance Companies, Inc., Intervenors.
    No. A08-78.
    Supreme Court of Minnesota.
    April 29, 2008.
    Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for Respondent.
    Edward Q. Cassidy, Brad R. Rolling, Felhaber, Larson, Fenlon & Vogt, P.A., St. Paul, MN, for Relators.
   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 17, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that [s]ummary affirmances have no prece-dential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice


author: PAGE, Justice. ANDERSON, Paul H., Justice MEYER, Justice

text:
    STATE of Minnesota, Respondent, v. Lanny David GREEN, Appellant.
    No. A06-218.
    Supreme Court of Minnesota.
    May 1, 2008.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, St. Paul, MN, for Appellant.
    Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN, Lamar T. Piper, Watonwan County Attorney, St. James, MN, for Respondent.
   OPINION

PAGE, Justice.

In September 2004, appellant Lanny David Green was charged by complaint with second-degree criminal sexual conduct based on a claim that he had touched the genitalia of four-year-old E.Q. in early July 2004 at a picnic at Long Lake in Watonwan County. On the first day of trial, the State was permitted to amend the complaint to add a charge of first-degree criminal sexual conduct. The jury found Green guilty of both offenses, and the court of appeals affirmed. We granted review to consider whether the interests of justice require that Green receive a new trial. Underlying this question is Green’s claim that evidence introduced at trial — in the form of an incorrectly transcribed statement Green made to the police — denied him a fair trial. For the reasons discussed below, we conclude that the interests of justice do not require that Green receive a new trial, and therefore affirm.

The facts relevant to this appeal are as follows. In July of 2004, E.Q.’s mother let Green take E.Q. to a picnic Green’s family held at Long Lake. During that picnic, Green and E.Q. were seen entering a changing shed together after they had finished swimming, where they remained for about 15 minutes with the door closed. According to E.Q.’s mother, when E.Q. returned home that evening E.Q. was acting quiet and scared. When asked what was wrong, E.Q. initially said she did not want to talk about it. Eventually, E.Q. told her mother that Green had “opened her up and touched her in the private.” As part of the subsequent police investigation, the police conducted a taped interview with Green. During that interview, Green indicated that after swimming at the picnic he took E.Q. into a changing shed and helped her out of her swimsuit. At some point, Green decided that he was going to check to make sure E.Q.’s genital area was clean. When asked what he meant when he indicated that he wanted to make sure that E.Q. was clean, Green said that he “just checked to make sure [there] wasn’t * * * anything in her privates.” Describing his actions, Green stated:

Well I just kind of went like that, I did open her up a little bit, but * * * I wasn’t trying to offend her or anything, I told her * * * I was just gonna check and make sure she was clean, or there wasn’t any sand or whatever * * * in there [that] could cause a rash.

According to the transcript of the interview, the following exchange also took place:

Officer: [W]here just exactly did you put your two fingers?
Green: Well I, oh I don’t know, I suppose in, I can’t remember if it was this way or that way, but * * ⅜ she was on the couch and probably this way and just I checked to make sure there wasn’t anything you know by the top part.

As a result of the police investigation, Green was charged with second-degree criminal sexual conduct. To prove that offense, the State was require to prove beyond a reasonable doubt that Green had sexual contact with E.Q. Green’s jury trial commenced on September 14, 2005. That morning, the State moved to amend the complaint to add a charge of first-degree criminal sexual conduct, which required the State to prove beyond a reasonable doubt that Green had sexually penetrated E.Q. According to the State, it sought to amend the complaint based on witness statements indicating that Green had sexually penetrated E.Q. The district court granted the State’s motion.

In his opening statement, the prosecutor told the jury that the State would present evidence that Green had admitted to “ ‘opening [E.Q.] up’ ” and to having “just ‘cleaned her out.’ ” The prosecutor did not refer to any specific admission by Green that he had put his finger “in” the victim. During defense counsel’s opening statement, however, the jury was told that it would

probably also hear, and maybe even get a copy, of Mr. Green’s statement to the police where he talked to them * * * and he described to them in his words what he did. He said, “Well, I — oh, I don’t know, I suppose in, I can’t remember if it was this way or that way * * * and just I checked to make sure there wasn’t anything, you know, by the top part.”

(Emphasis added.)

At trial, E.Q.’s mother, testifying for the State, testified that E.Q. had gone swimming with Green at a picnic. After the picnic, E.Q. was “very quiet, very shook[ ] up, very scared.” When asked what had happened, E.Q. told her mother that Green had “opened her up and touched her in the private.” According to E.Q.’s mother, when asked to clarify where she had been touched, E.Q. “pointed to her inside.” "When asked again what had happened, E.Q. claimed that Green “opened her up and touched her,” and pointed to her genital area. On cross-examination, E.Q.’s mother again said that E.Q. had told her that Green “opened her up and touched her” and that the child had pointed to her genital area instead of saying whether she had been touched on the outside or inside.

Deputy Jeremy Nachreiner next testified regarding his interview with Green. Nachreiner testified that Green admitted to helping E.Q. change out of her swimsuit and to “opening] her up a little bit and checking] to make sure there was no sand or any rashes.” During his testimony, Na-chreiner referenced the transcript of his interview with Green, but did not say that Green had admitted to putting his fingers inside E.Q. On cross-examination, the defense successfully moved, without objection, to admit the entire transcript of the interview into evidence. The actual tape recording of Green’s interview with Deputy Nachreiner was never offered or received into evidence. Using the transcript, defense counsel highlighted responses by Green indicating that Green had touched E.Q. “just on the sides” and on “just the top side.”

Christian Archerd, Green’s former girlfriend, also testified for the State. Ar-cherd had attended the picnic and observed Green and E.Q. enter the changing shed together after they had finished swimming. She testified that the two stayed inside the shed for about 15 minutes with the door closed.

Two other witnesses for the State testified to statements they heard Green make about the incident. Lisa Smith stated that Green told her about the incident in the changing shed, and that he admitted that he “cleaned [E.Q.] out.” Smith further testified that Green said that he had “clean[ed] her up [to] make sure that there was nothing in there.” Smith went on to say that Green admitted that he “opened her up and cleaned her out, or something like that. * * * He said he used his fingers, or finger, or something, to clean her out, you know.” Stephanie Morey testified that Green told her that “he had opened [E.Q.] up to make sure there was no sand inside of her.”

The State also elicited testimony from Robert Young of the Watonwan County Sheriffs Office regarding a search conducted of Green’s house. During that search, nude photographs of children were discovered in Green’s bedroom and on various computers located in the house. The discovery of child pornography in Green’s house was significant because, according to Young, research has shown a link between child molestation and the possession of child pornography.

The defense called both Green’s mother and Green himself as witnesses. Green’s mother testified that Green told her only that he “had checked to see if [E.Q.] was clean.” She also admitted, though, that she had previously informed a law enforcement officer that Green had told her that he had “wiped [E.Q.] out.”

In his testimony, Green explained that after swimming, he took E.Q. into a changing shed at the lake, helped her change her clothes, and checked “the top part” of her vagina to make sure it was clean. When asked what he meant when he told Deputy Nachreiner that he had “opened her up a little bit,” Green explained that he meant he had only opened “the top part. Just enough to see if there was any yeast infection, or anything like that.” He denied ever using his finger to clean E.Q. out, and, on cross-examination, denied having told anybody that he had done so.

On cross-examination, the State impeached Green using his transcribed interview with Deputy Nachreiner. After reciting Deputy Nachreiner’s question asking where Green had put his fingers, the prosecutor had Green read his response from the transcript “word for word.” Green then read, “Well, I — oh, I don’t know. I suppose in. I can’t remember if it was this way, or that way, but she was on — she was on the couch, and probably this way, and just I checked to make sure there wasn’t anything, you know, by the top part.” When the prosecutor asked what he meant by “I suppose in,” Green responded that he was not referring to E.Q. at all, but was only explaining “in what direction.” Green did not deny or otherwise claim that he had not said “I suppose in” during the interview or that any other part of his answers to Deputy Nachreiner’s questions was transcribed inaccurately.

In his closing argument, the prosecutor noted that Green never disputed having touched E.Q. and, pointing to Green’s multiple explanations for what he had done, argued that if Green had been telling the truth, he would have been able to articulate a reason for his actions. As evidence of Green’s sexual intent, the prosecutor pointed to the child pornography found in Green’s house.

The prosecutor also engaged in an extensive discussion on the issue of penetration. First, the prosecutor noted that any intrusion, however slight, into a genital opening constitutes penetration. The jury was then reminded of the testimony that Green had told others that he had cleaned out E.Q. with his fingers. On that point, the prosecutor observed, “If you clean out your billfold, you are going to have to reach into it. If you clean out your refrigerator, you are going to go into it. You clean out your pocket, you are going to go into it.” The prosecutor then stated:

[Pjerhaps the most telling evidence of penetration comes from the Defendant himself when he was talking back on August 23, 2004, to Deputy Nachreiner. And the deputy asked him, * * * ‘Where, just exactly, did you put your two fingers?”
Mr. Green’s response was, word for word now, ‘Well, I — oh, I don’t know. I suppose in. I can’t remember if it was this way or that way, but she was on— she was on the couch and probably this way. And just I checked to make sure there wasn’t anything, you know, by the top part.”
“Where did you put your two fingers?”
And he said, “I suppose in.”
In where?

Noting that Green had no good explanation for where he had put his fingers, the prosecutor said, “I would submit to you that you ought to take [Green] at his word when * * ⅜ he said, T suppose they went in.’ I submit to you that there is no evidence whatsoever that they could be any other place in this case than that little girl’s private area.”

In his closing argument, defense counsel admitted that Green touched E.Q. in her genital area, but denied that he ever penetrated her. He further argued that E.Q. had not explicitly told her mother that penetration had occurred. Defense counsel also argued that the phrase “I suppose in” was not very clear and could have meant “in this fashion” as opposed to “inside.” In addition, defense counsel argued that Green’s statements regarding “wiping out” E.Q. did not indicate penetration.

On September 16, 2005, the jury found Green guilty of both first- and second-degree criminal sexual conduct. On October 31, 2005, Green brought a motion for a new trial in the interests of justice, pursuant to Minn. R.Crim. P. 26.04, subd. 1(1)1, based on defense counsel’s post-trial discovery that the transcript of Green’s interview with Deputy Nachreiner that was introduced at trial had been incorrectly transcribed. Defense counsel argued that the transcript of Green’s answer to the question regarding where he had put his fingers should have been read as “I suppose um.” Defense counsel further argued that, because this statement was “the centerpiece of the State’s case for the first degree charge,” the interests of justice required that Green receive a new trial. As to why he had not discovered the transcription error before trial, defense counsel indicated that, although he was aware that the tape of Green’s interview was available, he did not listen to it before trial because the initial charge was only for second-degree criminal sexual conduct, which did not require a showing of penetration. Defense counsel further indicated:

I am wishing that I had gone and listened to the tape. But, frankly, I don’t know that it would have made any difference to me at that point because I wouldn’t have been listening for the word “in” or “um.” I would have been looking for evidence that could be relied on to establish sexual or aggressive intent. * * * I probably wouldn’t have paid particular attention, * ⅞ ⅜ to whether Mr. Green said “um” or “in.” It was not until the first degree charge was added that that became significant. By then it was too late.

In response to defense counsel’s arguments, the State conceded that the transcript appeared to be erroneous, but argued that defense counsel was aware before trial that a charge of first-degree criminal sexual conduct was possibly forthcoming. The State also argued that there was ample witness testimony at trial indicating that Green had engaged in penetration of E.Q.

After listening to the tape of the interview, the district court denied the new trial motion, stating:

There is much testimony regarding “opening up” or “cleaning out” that was communicated certainly to others and not in the context of the tape or transcript or testimony that was referred to between Mr. Green and Mr. Nachreiner. * * * [Tjherefore, the Court finds that the Defendant is not entitled to a new trial on that issue * * ⅜.

Following the denial of the motion, Green appealed, claiming that the admission of images of child pornography at trial was error and that his attorney rendered ineffective assistance of counsel by introducing the erroneous transcript of his police interview. The court of appeals affirmed the conviction. State v. Green, No. A06-218, 2007 WL 1746684 (Minn.App.June 19, 2007). Green petitioned our court for review, raising the same issues he had raised at the court of appeals. We denied review on those issues, but granted review to consider whether the district court erred when it denied Green a new trial in the interests of justice.

Minnesota’s rules of criminal procedure allow a new trial to be granted if “required in the interests of justice.” Minn. R.Crim. P. 26.04, subd. 1(1)1. We review the denial of a motion for a new trial for an abuse of discretion. State v. Fenney, 448 N.W.2d 54, 62 (Minn.1989).

The State first argues that this appeal should be dismissed because Green did not file his motion for a new trial within the 15-day time period set forth in Minn. R.Crim. P. 26.04, subd. 1(3). Green does not dispute that his new trial motion to the district court was untimely. He argues, however, that the timeliness issue was not raised to the district court and has therefore been waived. Because the timeliness issue was not raised in the district court, we agree that it has been waived. See State v. Roby, 463 N.W.2d 506, 508 (Minn.1990) (declining to address issue raised for the first time on appeal).

In the past, in analyzing the “interests of justice,” we have considered a number of factors. We have considered the degree to which the party alleging error is at fault for that error. Compare State v. Wembley, 728 N.W.2d 243, 245-46 (Minn.2007) (explaining that the interests of justice did not require consideration of defendant’s argument regarding tape recording because defendant had “affirmatively requested” that the jury consider that recording for a “tactical reason”), and White v. State, 711 N.W.2d 106, 110-11 (Minn.2006) (concluding that the interests of justice did not justify review when individual failed to challenge composition of jury at proper time), with Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508, 512 (Minn.2006) (affording party “benefit of the doubt” in interests of justice when that party attempted to comply with time limits for appeal). We have also considered the degree of fault assigned to the party opposing the motion for new trial. Compare State v. Scanlon, 719 N.W.2d 674, 687 (Minn.2006) (declining to grant new trial in interests of justice because alleged prose-cutorial errors “appear to be the result of oversight or mistake, not deliberate attempts to hide facts or surprise the defense”), and State v. Clifton, 701 N.W.2d 793, 800 (Minn.2005) (stating that, although prosecutor’s comments were inappropriate, she did not use race to disparage defendant and her argument had basis in record, thus rendering reversal in interests of justice inappropriate), with State v. Cabrera, 700 N.W.2d 469, 475 (Minn.2005) (reversing in interests of justice based on “serious prosecutorial misconduct” in interjecting race into closing argument).

In addition, we have considered whether some fundamental unfairness to the defendant needs to be addressed. See State v. Allen, 706 N.W.2d 40, 44 (Minn.2005) (considering defendant’s Blakely argument in interests of justice because such argument was unknown to defendant and contrary to established case law at time it would have had to be raised); Clifton, 701 N.W.2d at 800 (taking into account fairness of defendant’s trial aside from error); see also State v. Osborne, 715 N.W.2d 436, 441-42 (Minn.2006).

Finally, the grant of a new trial in the interests of justice appears to be reserved for extraordinary situations. See In re Welfare of S.M.E., 725 N.W.2d 740, 744 (Minn.2007) (discussing the application of the interests of justice in exceptional cases); Valencia v. Markham Co-op. Ass’n, 210 Minn. 221, 226, 297 N.W. 736, 738-39 (1941) (discussing our hesitance to grant a new trial in the interests of justice except in exceptional cases).

Applying these considerations, we hold that the trial court did not abuse its discretion when it denied Green’s motion for a new trial. Obviously, the State bears responsibility for the inaccurate transcription of Green’s taped interview with Deputy Nachreiner as well as for its failure to discover that the transcript was inaccurate before it was provided to Green’s counsel and used at trial. The State did not, however, withhold any information from the defense or attempt to exploit the inaccuracy in the transcript during its case-in-chief. In fact, the State did not refer to Green’s erroneously transcribed statement in its opening statement, in its direct examination of Deputy Nachreiner, or at any other time during the presentation of its case.

Green, however, bears responsibility for the admission of the inaccurate interview transcript into evidence. It was Green’s defense counsel who, without having listened to the tape of the interview to verify the accuracy of Green’s statement, put the inaccurate transcript in front of the jury during his opening statement. Evidently Green, who was present during the opening statement, did not bring this inaccuracy to his counsel’s attention. His defense counsel then, while cross-examining Deputy Nachreiner, successfully moved to have the entire transcript of the interview, including the inaccurate statement, admitted into evidence. Further, when cross-examined about his statement, Green, the person in the best position to know what he had said during the interview, did not deny that he had said “I suppose in” or otherwise call attention to the transcript’s inaccuracy. In light of these facts, we conclude, on balance, that Green bears the greater responsibility for the inaccurately transcribed statement’s placement before the jury.

We also conclude, based on the record presented, that the admission of the inaccurately transcribed statement did not result in any fundamental unfairness to Green. First, the inaccurately transcribed statement was given by Green himself, and its proper content was peculiarly within his personal knowledge. Yet, as noted previously, when given the opportunity on cross-examination to deny saying “I suppose in,” Green did not do so. Instead, he merely attempted to clarify what he meant when he used the word “in.” In addition, it is relevant to our fairness analysis that the erroneous statement likely had no significant impact on the jury’s verdict, in light of the strength of the evidence presented against Green. Cf. State v. Wright, 726 N.W.2d 464, 478 (Minn.2007) (stating that, in harmless error analysis, appellate courts should consider impact of erroneously admitted evidence on verdict). Three individuals gave testimony indicating that Green had admitted “opening [E.Q.] up” or “cleaning her out.” E.Q.’s mother also testified that E.Q. told her that Green had “opened her up and touched her in the private.” Moreover, the similarity between the statements Green made to each of these individuals is striking, as is the similarity between those witnesses’ testimony and Green’s own statements — both to the police and at trial — that he had “opened [E.Q.] up” to make sure she was clean.

Finally, based on a careful review, we are satisfied that there is nothing in the record to indicate that this case falls into the category of exceptional cases requiring the grant of a new trial in the interests of justice. Although the State was responsible for the erroneous transcription of Green’s taped police interview, the State did not engage in any misconduct with respect to the use of that transcribed interview. Further, we are satisfied that none of Green’s constitutional rights were violated and that he received a fair trial.

Having concluded that, on balance, Green bears the greater responsibility for his inaccurately transcribed statement being put in front of the jury, that the admission of the inaccurate statement did not result in any fundamental unfairness to Green, and that this is not an exceptional case warranting a new trial, we hold that the district court did not abuse its discretion when it denied Green’s motion for a new trial in the interests of justice.

Affirmed.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, Paul H., Justice

(dissenting).

I respectfully dissent. During Lanny David Green’s trial for first- and second-degree criminal sexual conduct, an inaccurate transcript of Green’s police interview was introduced into evidence. The effect of this transcription error was to turn a meaningless utterance into a confession of the key element distinguishing the two charges — sexual penetration versus sexual contact. Because I conclude that a conviction based on a typographical error is fundamentally unfair under the circumstances of this case, I would reverse Green’s conviction for first-degree criminal sexual conduct and remand this case to the district court for further proceedings on that charge or, alternatively, for conviction and sentencing on the second-degree criminal sexual conduct verdict.

Before turning to the key issue in this case, I believe that it is both helpful and important to clarify what is not at issue. This case is not about whether Green committed and should be punished for a terrible crime against an innocent 4-year-old girl. The evidence presented at Green’s trial indicates that Green had sexual contact with the alleged victim. I conclude that the evidence is more than sufficient to support the jury’s verdict of guilty for second-degree criminal sexual conduct, and I would affirm that verdict. Rather, this case is about whether our court will remain mindful of one of our most solemn obligations — to ensure the basic fairness of the procedures used to deprive a citizen of his liberty.

Green was initially charged with one count of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a) (2006). On the morning of the first day of trial, however, the State amended the complaint to include an additional charge of first-degree criminal sexual conduct in violation of MinmStat. § 609.342, subd. 1(a) (2006). The difference between these two charges is that the first-degree offense requires “sexual penetration” whereas the second-degree offense requires “sexual contact.” Compare Minn.Stat. § 609.342, subd. 1(a), with Minn.Stat. § 609.343, subd. 1(a). As relevant to the present proceedings, sexual contact includes “intentional touching by the actor of the complainant’s intimate parts” that is “committed with sexual or aggressive intent.” Minn.Stat. § 609.341, subd. ll(a)(i) (Supp.2007). Sexual penetration, on the other hand, includes an “intrusion however slight into the genital or anal openings” of the victim by a part of the actor’s body. Minn.Stat. § 609.341, subd. 12(2)© (2006).

Both charges in this case were based on an allegation that Green sexually assaulted the alleged victim — a 4-year-old girl— while helping her change out of her swimsuit after swimming at a family picnic. The issue in this appeal centers on Green’s interview with Deputy Nachreiner during the police investigation into this allegation. During this interview, Green admitted that he “open[ed] her up a little bit” but stated that he was just checking to “make sure she was clean.” According to the transcript of this interview, which was prepared by the State, Green gave the following answer when asked where exactly he put his two fingers:

Well I, oh I don’t know, I suppose in, I can’t remember if it was this way or that way, but she was on, she was on the ■ couch and probably this way and just I checked to make sure there wasn’t anything you know by the top part.

(Emphasis added.) The transcript, in this-form, was admitted into evidence, the relevant parts were read to the jury, and it was taken into the jury room. But on appeal the State concedes that the transcript was incorrect and that the tape of the interview reveals that Green actually said, “I suppose uh” or “I suppose win,” not “I suppose in.” Thus, the State’s mis-transcription of this one sound had the effect of changing a meaningless utterance by Green into a confession of the critical element distinguishing first- and second-degree criminal sexual conduct — sexual penetration.

The majority suggests that Green’s conviction for first-degree criminal sexual conduct is not fundamentally unfair because “the strength of the [other] evidence presented against Green” rendered the error insignificant. But outside of the meaningless utterance that the State turned into a confession, the evidence at Green’s trial consisted only of statements made by Green that he had “opened [the alleged victim] up a little bit” and “cleaned her out,” and a statement by the alleged victim to her mother that Green had touched her in the genital area. While an admission to “cleaning] her out” could be interpreted to include penetration, the meaning of this phrase in the context of this case is not entirely clear. Thus, although the other evidence certainly suggests contact with the alleged victim’s intimate parts, the only unequivocal evidence presented to the jury that Green had penetrated the alleged victim was the inaccurate statement from the transcript of Green’s interview with Deputy Nachreiner.

The effect of the transcription error in this case was amplified by the State’s repeated emphasis on the inaccurate statement. While cross-examining Green, the State highlighted the erroneous confession by reading Deputy Nachreiner’s question and instructing Green to recite his response from the transcript “[w]ord for word.” Moreover, the State repeatedly highlighted the inaccurate confession during the State’s closing argument. At one point, the State described the erroneous confession as “the most telling evidence of penetration” and read Green’s purported answer to the jury. The State also suggested that the jury “ought to take [Green] at his word when he was asked where his fingers went, and he said, T suppose they went in.”’ Finally, during rebuttal argument, the State responded to the defense’s argument that the evidence of penetration was unclear by stating:

When you go back in the jury room, I want you to read that question because the question is, ‘Where did your fingers go? Where exactly did your fingers go?”. And that’s what he responds to. “Oh, I don’t know, I suppose in.” And I don’t think that’s murky, or ambiguous, or anything else. I think it is clear.

Under these circumstances, where the erroneous confession is the only unequivocal evidence of penetration and this error was repeatedly emphasized by the State, I cannot agree with the majority’s conclusion that the erroneous confession “likely had no significant impact on the jury’s verdict.”

Even more troubling is the majority’s assertion that, despite the uncontradicted fact that the State created the transcript of the interview and was therefore the party that turned a meaningless noise into a confession, “Green bears the greater responsibility for his inaccurately transcribed statement being put in front of the jury.” The majority first attempts to support this conclusion based on the fact that Green’s attorney introduced the erroneous transcript into evidence. While this fact is undisputedly true, the record shows that the State had notified Green’s attorney before trial that it possessed “[confessions, admissions, or statements in the nature of confessions made by the defendant,” and the erroneous transcript of Green’s police interview was included with that disclosure. Once Green decided to testify in his own defense, it was reasonable for Green’s attorney to anticipate that the State would confront Green with the transcript on the witness stand. Indeed, as the trial played out, the State did in fact confront Green with the erroneous transcript during cross examination. Thus, the fact that Green’s attorney made the strategic decision to defensively introduce the transcript into evidence before his client was confronted with it on the witness stand does not appear sufficient to shift the responsibility for the error away from the State, which actually made the error.

The majority also attempts to shift the blame to Green by focusing on the fact that Green’s attorney did not listen to the recording of the interview before introducing the transcript into evidence. But in preparing to present the State’s case, the prosecuting attorney either: (1) also failed to listen to the recording; (2) listened to the recording but failed to discover the transcription error; or (3) discovered the error but failed to correct it. Because the State thus had at least as much of an opportunity to discover and correct the transcription error as Green’s attorney, and because the State has the burden of proving each element of a criminal offense beyond a reasonable doubt, I believe that it is unfair to hold Green’s attorney to a higher standard in this regard by shifting the responsibility for the error away from the State and onto Green.

Finally, the majority attempts to support its conclusion that Green bears the greater responsibility for the introduction of the erroneous confession by noting that Green failed to challenge the accuracy of the transcript on cross-examination. While on the witness stand, the State confronted Green with a document that it asserted was an accurate transcript of an interview that Green had given months before. This confrontation occurred during a cross-examination in a trial where Green was facing the possibility of a substantial prison sentence. In these highly stressful circumstances, Green did not directly challenge the authenticity of the transcript. Nevertheless, he did continue to challenge the truth of the allegation that he had penetrated the alleged victim. Yet the majority concludes that Green bears more responsibility for the error because he did not discover and challenge the transcription error made by the State. This conclusion ignores the realities faced by an individual in such circumstances and unfairly shifts the responsibility for the error away from the party that actually made it.

Minnesota Rule of Criminal Procedure 26.04, subd. 1, allows a new trial “[i]f required in the interests of justice.” In this case, Green was charged with both fírst- and second-degree criminal sexual conduct. The evidence presented at Green’s trial indicates that Green committed a terrible crime — second-degree criminal sexual conduct — by engaging in sexual contact with a 4-year-old girl, and I agree that Green should be punished for that offense. But the only unequivocal evidence of penetration presented to the jury in this case was the inaccurate transcript of Green’s police interview that was prepared by the State, admitted into evidence, and repeatedly emphasized by the State. Thus, with respect to the higher first-degree charge, it is hard to imagine many stronger cases for a new trial “in the interests of justice” than a conviction based on the State’s transcription error that changed a meaningless utterance into a confession of the defining element of that crime. If in a case like this we ignore our solemn obligation to ensure the fairness of judicial proceedings and refuse to step in to see that justice is done, who is left to perform this duty? Accordingly, I would reverse Green’s conviction for first-degree criminal sexual conduct and remand this case to the district court for further proceedings on that charge or, alternatively, for conviction and sentencing on the second-degree criminal sexual conduct charge.

MEYER, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . "Second-degree criminal sexual conduct” is defined, in relevant part, as sexual contact with an individual under 13 years of age by an actor more than 36 months older than that individual. Minn.Stat. § 609.343, subd. 1(a) (2006). “Sexual contact” is defined, in relevant part, as the intentional touching of an individual’s intimate parts committed with aggressive or sexual intent. Minn.Stat. § 609.341, subd. ll(a)(i) (2006).

      . "First-degree criminal sexual conduct” is defined, in relevant part, as sexual penetration of an individual under the age of 13 by an actor more than 36 months older than that individual. Minn.Stat. § 609.342, subd. 1(a) (2006). “Penetration” is defined as any intrusion, however slight, into a genital opening by any part of the actor’s body. Minn. Stat. § 609.341, subd. 12(2)(i) (2006).

      . In their briefs and oral arguments to us, the parties suggest that our decision should be guided by our jurisprudence on newly-discovered evidence. Green claims that we must apply the test set forth in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), over-mled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004), applicable to newly-discovered evidence of falsified testimony. Under the Larrison test, a new trial is to be granted if: (1) the court is reasonably well-satisfied that the testimony in question was false; (2) without that testimony the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Pippitt v. State, 737 N.W.2d 221, 226-27 (Minn.2007). The State argues that the test set out in Race v. State, 417 N.W.2d 264, 266 (Minn.1987), for all other newly-discovered evidence should be applied. Under Race, a new trial should be granted if: (1) the evidence was not known to the defendant or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of a lack of diligence; (3) the evidence is material; and (4) the evidence will probably produce an acquittal or more favorable result at a retrial. Id.

      We decline to apply either of the tests advocated by the parties. First, we granted review under the interests of justice standard of Rule 26.04, subdivision 1(1)1, not under subdivision 1(1)5, which permits a new trial to be granted based on newly-discovered evidence. Moreover, because the tape recording of Green’s police interview was in existence and made available to Green's defense counsel in advance of Green's trial, the post-trial discovery of the transcription error did not constitute newly-discovered evidence in the sense contemplated by either Larrison or Race.

      . It is also of some significance that the error in transcription was not so facially obvious as to render inexcusable the State's failure to discover it. Our independent review of the tape of Green’s interview reveals that it is simply unclear what the transcribed word should actually be.

      . Because the facts are not before us, we have no occasion to consider how our analysis might differ if the State had introduced the inaccurate transcript into evidence for the purpose of exploiting Green’s apparent admission either during its case-in-chief or during its cross-examination of Green. Further, because Green took the stand, we have no opportunity to consider how our analysis might differ if Green had exercised his constitutional right to remain silent.

      . As a final matter, we note that by order of November 21, 2007, we deferred consideration of a motion by Green to strike portions of the State’s brief and appendix. Because none of the challenged materials are in the trial record, and therefore are not properly before us, Green's motion to strike is granted.

      . My conclusion that the erroneous confession cannot be said to be harmless in this case does not mean that the evidence against Green, including Green’s actual statements during his police interview, would not be sufficient to sustain a guilty verdict for first-degree criminal sexual conduct if the evidence were presented to a jury without the inaccurate confession presented in this case.


author: SABERS, Justice.

text:
    2008 SD 26
    Eugene R. ASHBY and Judith A. Ashby, husband and wife, Plaintiffs and Appellants, v. Jon OOLMAN and Carol Oolman, husband and wife, Defendants and Appellees.
    No. 24534.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2008.
    Decided April 02, 2008.
    Dylan A. Wilde, Thomas E. Brady of Brady Pluimer, P.C., Spearfish, South Dakota, Attorneys for plaintiffs and appellants.
    Thomas E. Adams of Voelker and Adams, P.C., Deadwood, South Dakota, Attorneys for defendants and appellees.
   SABERS, Justice.

[¶ 1.] Eugene R. Ashby and his wife, Judith A. Ashby, claimed a twenty-five foot wide strip of land between their house and their neighbors, Jon Oolman and his wife, Carol Oolman. When Oolman began construction on the land that Ashby claimed, Ashby brought suit against Ool-man for trespass, wrongful occupation and for a determination of the property line. After a bench trial, the circuit court found in favor of Oolman. Ashby appeals and we affirm.

FACTS

[¶ 2.] Ashby owns land in Lead, South Dakota known as 803 Searle Street. Ash-by obtained title to this property on July 21, 1998 when Judith Ashby received a limited warranty deed from the Administrator of Veteran’s Affairs. The deed described the property as: “The north portion of Lot 4, Block 12, of the Kenwood Addition to the City of Lead, Lawrence County, South Dakota also known as 803 Searle Street in the City of Lead, South Dakota.”

[¶ 3.] Oolman owns the land adjacent to Ashby’s land, known as 809 Searle Street. Oolman obtained title by warranty deed from Equity One, Inc. on January 23, 2004. The legal description is: “Lots 1, 2 and 3, Block 12 of the Kenwood Addition to the City of Lead, Lawrence County, South Dakota, as set out in Plat Book 2 Page 55, Lawrence County Records also known as 809 Searle Street.”

[¶ 4.] These two properties were originally entirely owned by Homestake Mining Company (Homestake). In 1956, Home-stake issued a license to Raymond Grosek allowing him to occupy the property described as:

A parcel of ground, the west corner of which lies in a Southwesterly direction from Corner No. 4 of said Adam Lode, M.S. 1281, about 105 feet thence Southeasterly about 104 feet, Thence Northeasterly about 52 feet Thence Northwesterly about 100 feet, Thence Southwesterly about 62 feet to the place of beginning.
The dwelling house situated on said parcel of ground is known as No. 803 Searle Street in the City of Lead.

Grosek lived on the property with his family until 1963, when he rented the property to the Hyde family for eleven years. While the Grosek and Hyde families occupied the land there were two garages on the Homestake property, one on the 803 Searle property and one on the 809 Searle property. The garage on the 803 Searle side had a fence attached to the back that ran between the two houses and down the hill to the back of the property. However, while Homestake still owned all of the property, Grosek and Delbert Heller, the occupant of 809 Searle Street, tore down the two garages for safety reasons and laid the wire fence down.

[¶ 5.] While Homestake owned all four lots on Searle Street, on July 10, 1978, Homestake conveyed only the 803 property by quitclaim deed to Grosek, who in turn quitclaimed the property to Emmet L. Tapp and Patricia A. Tapp two days later. The legal description contained on the quitclaim deed from Grosek to Tapp described the property as:

Lot Four (4) Block Twelve (12) Kenwood Subdivision to the Washington Addition to the City of Lead, Lawrence County, South Dakota; which said Lot is also referred to as Lot eight (8) Highland Park Addition to the City of Lead, South Dakota, according to Homestake Mining Company Drawing, indicating said Lot to be Seventy-five (75) feet by Sixty-five and 75/100 65.75 feet more or less. This property is also described as 803 Searle Street.

The legal description contained in the quitclaim deed from Homestake to Grosek did not contain the “Seventy-five (75) feet by Sixty-five and 75/100 65.75 feet more or less” description.

[¶ 6.] The 803 Searle property was conveyed a few more times over the years. Eventually, the property was conveyed by Sheriffs Deed to First Federal Savings and Loan Association of Rapid City, South Dakota on March 9, 1987. The Sheriffs deed omitted the 75 foot by 65.75 foot dimensions and described the property as: “the North portion of Lot Four (4) Block Twelve (12) of the Kenwood Addition to the city of Lead, Lawrence County, South Dakota also known as 803 Searle Street in Lead, South Dakota.” Title then transferred to the Veteran’s Administration, which deeded the property to Ashby.

[¶ 7.] Oolman’s property was conveyed by Homestake in two separate steps. First, Lot 3 of Block 12 of the Kenwood Addition (a portion of this property is where Ashby claims an interest) was conveyed to Bruce and Rhonda Huber on December 17, 1976. Lots 1 and 2 of the Kenwood Addition were conveyed to the Hubers on February 21, 1977. The house on 809 Searle Street was licensed to Delbert and Jeannie Heller, who conveyed their interest to the Hubers on April 26, 1977. Shortly thereafter, Hubers conveyed their interest in the entire property to Kathy Kirby and Curtis Eide. The Eides moved in June of 1995 and rented the property to the Alleys from June 1998 to August 2000. This property changed hands a couple more times and eventually was conveyed by Equity One, Inc. to Ool-man in 2004.

[¶ 8.] The subject of this appeal is the ownership of a strip of land, approximately twenty-five feet wide, between Ashby’s and Oolman’s properties. In the spring of 2000, Oolman began building plans for a garage between the two properties. He hired a surveyor to mark the boundary lines and applied to the City of Lead for a building permit. Ashby objected to Ool-man’s plans and argued that the property line was closer to the Oolman residence than the survey and building plans indicated. Ashby claimed a seventy-five foot frontage on Searle Street, which would place the eastern boundary along a line from a tree stump on Searle Street to a large pine tree at the back of the property. Oolman claimed the property line is located on a steel post just east of Ashby’s house. The City of Lead gave Ashby an opportunity to demonstrate the property line was erroneous, but he failed to produce evidence. Thereafter, the city issued a building permit and Oolman began construction on the garage in the summer of 2004.

[¶ 9.] Ashby brought suit against Ool-man to establish the boundary line between the two properties, for trespass, wrongful occupation, and an order restraining and enjoining Oolman from entering Ashby’s land and an order requiring Oolman to restore Ashby’s land to its original condition. He claimed he owned the disputed land under three separate theories of adverse possession. The circuit court found in favor of Oolman and dismissed Ashby’s complaint. Ashby appeals, raising the following issues:

1. Whether the circuit court erred in denying Ashby’s claim of adverse possession pursuant to SDCL 15-3-15.
2. Whether the circuit court erred in denying Ashby’s claim of adverse possession pursuant to SDCL 15-3-10 or SDCL 15-3-12.

STANDARD OF REVIEW

[¶ 10.] This appeal follows a court trial on the issue of adverse possession. “Proof of the individual elements of adverse possession present questions of fact for the trial court, while the ultimate conclusion of whether they are sufficient to constitute adverse possession is a question of law.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (quoting Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994)) (citing Lien v. Beard, 478 N.W.2d 578, 580 (S.D.1991)). Therefore, the circuit court’s findings of fact are reviewed under the clearly erroneous standard, while its conclusions of law are reviewed under the de novo standard. Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶ 19, 740 N.W.2d 857, 862 (additional citation omitted). Moreover, issues of statutory interpretation and application are matters of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶8, 727 N.W.2d 291, 294 (Rotenberger I) (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94).

[¶ 11.] 1. Whether the circuit court erred in denying Ashby’s claim of adverse possession pursuant to SDCL 15-3-15.

[¶ 12.] If an individual possesses and pays taxes on land for ten years under claim and color of title, SDCL 15-3-15 entitles the tax-paying individual to a judgment of ownership. SDCL 15-3-15 provides that:

Every person in the actual possession of lands or tenements under claim and col- or of title made in good faith, and who shall have continued for ten successive years in such possession, and shall also during said time have paid all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and áccording to the purport of his paper title. All persons holding under such possession by purchase, devise, or descent before said ten years shall have expired, and who shall have continued such possession and payment of taxes as aforesaid so as to complete said term of ten years of such possession and payment of taxes, shall be entitled to the benefit of this section.

This statute requires: “(1) claim and color of title made in good faith, (2) ten successive years in possession, and (3) payment of all taxes legally assessed.” Andree v. Andree, 291 N.W.2d 788, 790 (S.D.1980).

[¶ 13.] Ashby claims the elements of this statute have been met because he has claim and color of title made in good faith due to the deed from Grosek that contained the 65 feet by 75.65 feet description. This, Ashby argues, would place the boundary at the old tree stump. The Lawrence County Equalization Office also has a notation on the property tax assessment card for 803 Searle Street that the lot size was “66 x 73.” Ashby has also paid all the assessed real estate taxes.

[¶ 14.] Ashby’s arguments fail for two reasons. First, Ashby did not possess the land under claim and color of title made in good faith. When Homestake quitclaimed the 803 Searle property, the legal description did not contain the 75 feet by 65.75 feet description. Only two days later, when Grosek quitclaimed the property to the Tapps, did the size designation appear in the deed. The description in the quitclaim deed from Homestake only conveyed:

The North Portion of Lot 4, Block 12 of the Kenwood Addition to Lead, South Dakota, according to L.D. Lee’s Map of the Kenwood Addition which lot is also known as Lot 8 of the Highland Park Addition to the City of Lead according to J.P. Crick’s Map of the City of Lead, South Dakota. The dwelling house situated on the above described lot is known as 803 Searle Street in Lead, South Dakota.

[¶ 15.] John Arleth testified at trial on behalf of Oolman and said that the north portion of Lot 4 would have a fifty-foot frontage, not the seventy-five foot frontage urged by Ashby, according to all three of the plat maps that he knew of for the property. Moreover, according to Arleth, Grosek originally had a license for more than just the north portion of Lot 4. However, Homestake only quitclaimed the north portion of Lot 4 and the deed held by Ashby only indicates ownership of the north portion of Lot 4. Therefore, Ashby would not have “a claim and color of title made in good faith.”

[¶ 16.] Nor is there evidence that Ash-by paid taxes on the disputed property. Darlene Piekkola, the Lawrence County Director of Equalization, testified that the property size on the assessor card was merely an estimate. She testified that the 66 x 73 is not a measure of the front and one side of the property. Rather, since the property lot was irregular the numbers are probably an average of the sides and front and back. Therefore, it is not demonstrated that taxes were actually assessed and paid on that particular twenty-five foot wide strip of land between the properties. Plaintiff has not demonstrated that the circuit court erred in finding against him regarding SDCL 15-3-15.

[¶ 17.] 2. Whether the circuit court erred in denying Ashby’s claim of adverse possession pursuant to SDCL 15-3-10 or SDCL 15-3-12.

[¶ 18.] In the alternative, Ashby claims that the circuit court erred because SDCL 15-3-10 or SDCL 15-3-12 vests title to the disputed property in him. SDCL 15-3-10 provides:

Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a convey- anee of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises under such claim for twenty years, the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots the possession of one lot shall not be deemed a possession of any other lot of the same tract.

(Emphasis added). The code also declares that:

For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment, or a decree, land shall be deemed to have been possessed and occupied in the following cases: (1) Where it has been usually cultivated or improved; (2) Where it has been protected by a substantial [enclosure....

SDCL 15-3-11.

[¶ 19.] Ashby alleges that Taylor v. Tripp, 330 N.W.2d 542 (S.D.1983), demonstrates that the circuit court erred. However, the facts in Taylor are distinguishable from this case. In Taylor, the occupant of the land mistakenly thought her property line extended all the way to a fence, when it actually stopped eleven feet short of the fence. Id. at 543. Nonetheless, she used the disputed property for a garden. Id. This Court noted that if “an adjoining landowner enters into possession under claim of title and under misapprehension as to the true boundary and continues in possession for twenty years, adverse possession is established under ... SDCL 15-3-10, not withstanding the fact the land extends beyond the calls of the occupant’s deed.” Id. at 544 (citing Sullivan v. Groves, 42 S.D. 60, 172 N.W. 926 (1919)). Additionally, the evidence at trial demonstrated “the fence line acted as a substantial [e]n-closure ... and ... the property next to the fence line was usually cultivated.” Id.; see also SDCL 15-3-11.

[¶ 20.] Ashby argues that the stump of a tree along with a second pine tree and remnants of a fence, located in the back of the property, constitute a “substantial enclosure.” However, a substantial enclosure is more than an invisible line running from a tree stump to a pine tree to a dilapidated, half-hidden fence at the back property line. For example, in Cuka v. Jamesville Hutterian Mutual Society, 294 N.W.2d 419 (S.D.1980), this Court found that “the James River formed a natural barrier around the disputed land” and thus constituted a “substantial enclosure.” Id. at 422. In Lewis v. Moorhead, 522 N.W.2d 1 (S.D.1994), a white fence that did not run the entire distance between the lots was declared a substantial enclosure but it “provide[d] a physical and visual basis for determining the property line.” Id. at 3 n. 4 (additional citation omitted). Finally, in Schultz v. Dew, 1997 SD 72, 564 N.W.2d 320, in finding that a tree line constitutes a substantial enclosure, we noted that “natural barriers may also satisfy the requirement of a substantial enclosure.” Id. ¶ 13, 564 N.W.2d at 323.

[¶ 21.] While natural barriers may be substantial enclosures, the problem in this case is that a tree stump, a second pine tree and a run-down fence at the back of the property is markedly different from the James River, a partial white fence, or a tree line. Additionally, the plain meaning of substantial enclosure does not support a finding that a tree stump is a substantial enclosure. Substantial is defined as “consisting of or relating to substance ..., not imaginary or illusory ... [or] being largely but not wholly that which is specified.... ” Enclosure is defined as “something that encloses [or] something enclosed.” Merriam Webster Online Dictionary, www.m-w.com (last accessed on March 20, 2008). An invisible line from stump to pine tree to a hidden run-down fence is not largely enclosing the property and does not meet the definition of substantial enclosure.

[¶ 22.] Finally, Ashby argues the disputed property is his under SDCL 15-3-12, which provides:

Where it shall appear that there has been an actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.

“[T]he property in question must either have been protected by a ‘substantial [e]n-closure’ or must have been ‘usually cultivated or improved.’ ” City of Deadwood, 2000 SD 29, ¶ 16, 607 N.W.2d at 26 (additional citation omitted). Moreover, “[t]he traditional elements of adverse possession require the ‘actual, open, visible, notorious, continuous and hostile’ occupation of the property for the statutory period.” Id. (additional citations omitted). The evidence produced at trial falls short and does not support this claim.

[¶ 28.] As discussed above, Ashby has not demonstrated the disputed property is substantially enclosed. Likewise, in this case, the testimony from the current and prior occupants of 809 Searle was that Ashby rarely if ever utilized his property and rarely touched the disputed property. Ashby lives in Huron, South Dakota and only utilized 803 Searle approximately three or four times per year and for a few days to a week at a time. When he visited, he parked on the street and not on the disputed property. The current and former residents of 809 Searle testified that they mowed the disputed property when it needed mowing, but Ashby may have mowed it once or twice. Brittany Alley testified that when her family rented the house for three years, they placed a trampoline next to their house and no one used the grass between their home and Ashby’s. Finally, there was no testimony that the property was “usually cultivated.” In actuality, the testimony reflects it was a strip of wild grass and weeds that was rarely mowed.

[¶ 24.] Ashby argues that when Grosek utilized the property there was a garage and a fence separating the property and therefore, that demonstrates the disputed property was on the 803 Searle side. However, when Grosek lived on the property, he did so under a license from Home-stake, which was different than the later deeded property. See supra ¶¶4-5. He later tore out the garage and fence in 1974 or 1975, while Homestake still owned the property. Grosek never adversely possessed the property. When Homestake quitclaimed the 803 Searle property to Grosek, he received only the north portion of Lot 1, which is exactly what Ashby owns now, nothing more.

[¶ 25.] Ashby has not demonstrated that the circuit court erred in ruling for Oolman. The evidence in the record demonstrates Ashby’s deed did not include the disputed property, nor has Ashby fulfilled the elements of adverse possession under any statute. Therefore, we affirm the circuit court.

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

ATTACHMENT

      . Unless further distinction is necessary, the parties will be referred to in the singular (i.e. Ashby and Oolman) even though both plaintiff and defendant consist of a husband and a wife.

      .The description in the quitclaim deed from Homestake to Grosek is as follows:
      The North Portion of Lot 4, Block 12 of the Kenwood Addition to Lead, South Dakota, according to L.D. Lee’s Map of the Ken-wood Addition which lot is also known as Lot 8 of the Highland Park Addition to the City of Lead according to J.P. Crick’s Map of the City of Lead, South Dakota. The dwelling house situated on the above described lot is known as 803 Searle Street in Lead, South Dakota.

      . Also known as Lot 9 of the Highland Park Addition according to the J.P. Crick's map. See attached copy of J.P. Crick map.

      . Also known as Lots 10 and 11 of the Highland Park Addition.

      . The surveyor for Ashby, Loren Vrem, testified that he created a plat map, but he used the dimensions 75 by 65.75 that were not in the quitclaim deed to Grosek, but were placed in the quitclaim deed from Grosek to Tapp. These plat maps are not recorded at the Register of Deeds. The recorded plat maps, which were used by Arleth, show a 50 foot frontage for Lot 4.

      . Despite Ashby’s claim that he mowed the lawn when necessary, the circuit court heard the testimony and specifically found that Eide maintained the disputed property all the way to the steel post next to Ashby’s home before and after Ashby bought the property.