author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2003 SD 153
    STATE of South Dakota, Plaintiff and Appellee, v. John Bryon MARTIN, Defendant and Appellant.
    Nos. 22736, 22744.
    Supreme Court of South Dakota.
    Argued Nov. 18, 2003.
    Decided Dec. 30, 2003.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.
    David L. Claggett, Spearfish, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] John Martin (Martin) was convicted in two South Dakota counties on multiple counts of possession of child pornography in violation of SDCL 22-22-23.1, now repealed. On appeal, Martin challenges the constitutionality of the statute based upon the doctrines of overbreadth and vagueness. Martin also raises a due process challenge in regards to his multiple convictions. Martin further questions the sufficiency of the evidence used to convict him. For his fifth point of error; Martin contends his sentence unlawfully exceeded the statutory limits for violation of SDCL 22-22-23.1. Finally, Martin asserts the trial courts plaped impermissible restrictions on his freedbm when he was prohibited from owning a computer, accessing the Internet, possessing pornography, and having no unsupervised contact with children for a period of ten years. For the reasons set forth in this opinion, we reject Martin’s arguments and affirm his convictions in both Lawrence County and Butte County, South Dakota.

FACTS AND PROCEDURE

[¶ 2.] The source of this appeal can be traced back to Operation Avalanche, a massive state and federal effort designed to crack down on child pornography. As part of that effort, federal authorities investigated a Texas company engaging in the distribution and sale of child pornography over the Internet. After seizing this company’s records, federal officials discovered information regarding the identities of individuals who had purchased child pornography from the business. Federal officials eventually provided South Dakota authorities with this customer list which included Martin’s name, credit card number, e-mail address, and other information concerning the purchase of child pornography.

[¶ 3.] On April 9, 2002, state investigators contacted Martin at his business, the Sunshine Healthcare Center located in Lawrence County, South Dakota, concerning Martin’s possible purchase of child pornography over the Internet. Martin agreed to speak with the investigators, and during this interview process he volunteered that he had intentionally sought out child pornography over the Internet. In addition, Martin voluntarily demonstrated to the investigators how he accessed child pornography through e-mails that contained website addresses.

[¶ 4.] Despite his admission that he intentionally sought out both hard-core and soft-core child pornography, Martin told the investigators that he was disgusted by the material. According to Martin, after hearing his pastor preach about the evils of child pornography, he began a personal “crusade” to get this material off the Internet. In order to accomplish his goal, he began to compile a list of child pornography websites and to download and print pornographic images of children from the Internet. Martin maintained that it was his plan to send these materials to then Governor William Janklow so that the Governor would do something about getting child pornography off the Internet. Martin admitted, however, that despite the fact that this “crusade” had started about three years earlier, no such letter had ever been written to Governor Janklow.

[¶ 5.] During the interview at his business, Martin indicated he also had a computer system at his residence in Butte County, South Dakota. In response to a request from the investigators, Martin agreed to allow them to follow him home in order to look through his second computer. After briefly examining Martin’s home computer, the detectives asked Martin to accompany them to the Spearfish Police Department to continue the interview. Martin agreed.

[¶ 6.] At the police station, the investigators told Martin he was not under arrest and was free to leave at any time. Martin indicated that he understood but was willing to resume the interview. Martin continued to maintain his possession of child pornography was related to his personal campaign to alert Governor Janklow to the ease with which such material could be obtained from the Internet. In response to further questioning, however, Martin admitted this crusade had “got[ten] a hold of him” at some point during the past year. He also admitted that he became sexually aroused by the pornographic images of children he obtained from the Internet. In particular, Martin related he was most aroused by male children and even experienced orgasms on several occasions when he dreamed of these images. Martin confirmed he had spent more than $1,000 to purchase child pornography over the Internet.

[¶ 7.] After obtaining search warrants for Martin’s business and residence, an investigator with specialized computer training examined both Martin’s home and business computers. Both computer hard-drives contained files with child pornographic images involving vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, nude posing, or combinations thereof. In addition, Martin’s “favorites” folder on his web browser contained web addresses with such names as “Preteen erotica,” “Best boys,” “Flawed, lolitas,” and “PedoLove.” A subsequent search on both computers revealed that the word “Janklow” did not appear on any document in either computer.

[¶ 8.] Subsequent to this investigation, grand juries in both Lawrence County and Butte County, South Dakota indicted Martin on several counts of possession of child pornography in violation of SDCL 22-22-23.1. In Lawrence County, Martin was charged with twenty-nine counts of knowing possession of child pornography based upon twenty-nine photographs investigators retrieved from his business computer. After a court trial, Martin was found guilty on twenty counts of possession of child pornography. The court then sentenced Martin to serve concurrent penitentiary sentences - of two years for each count. The court suspended all but forty-five days of the penitentiary sentence subject to certain terms and restrictions. Among these restrictions were prohibitions against Martin owning or possessing a computer and pornography. Additionally, Martin was required to register as a sex offender and submit to warrantless searches and seizures.

[¶ 9.] In Butte County, Martin was charged with ten counts of knowing possession of child pornography based upon ten images recovered from his home computer. After a court trial, Martin was found guilty on all ten counts. As a result, the trial court sentenced Martin to two years in the penitentiary for each crime, to be served concurrently. The court, however, suspended the execution of all but forty-five days of this sentence subject to additional conditions. Among these restrictions were requirements that Martin not possess any pornography, that he not access the Internet, and that he have no unsupervised contact with children under eighteen years of age.

[¶ 10.] Martin now appeals his convictions in both Lawrence County and Butte County. For ease of analysis and because each appeal raises the same substantive challenges, this opinion addresses both of Martin’s appeals.

[¶ 11.] Martin raises the following issues in regards to his convictions for possession of child pornography in both Lawrence County and Butte County, South Dakota:

1. Whether SDCL 22-22-23.1 (2001 Version) is unconstitutionally overbroad in violation of the First Amendment’s protection of Free Speech.
2.Whether SDCL 22-22-22 (2001 Version) and SDCL 22-22-23.1 (2001 Version) are unconstitutionally vague in violation of the Fifth and Fourteenth Amendments’ guarantees of Due Process.
3. Whether Martin’s convictions on multiple counts of Possession of Child Pornography violated the Double Jeopardy Clause of the Fifth Amendment.
4. Whether there was sufficient evidence to support Martin’s convictions on multiple counts of Possession of Child Pornography.
5. Whether Martin’s ten-year probationary periods for his convictions under SDCL 22-22-23.1 unlawfully exceeded the maximum statutory limits..
6. Whether the trial court properly prohibited Martin from accessing the Internet, using a computer, and possessing pornography for ten years as part of his sentence.

[¶ 12.] The following issue applies to Martin’s conviction in Butte County, South Dakota only:

7. Whether the trial court properly prohibited Martin from any unsupervised contact with children under the age of eighteen years for a period of ten years as part of his sentence.

Affirmed.

STANDARD OF REVIEW

[¶ 13.] In State v. Allison, we articulated the guiding principles we employ in reviewing challenges based upon alleged constitutional violations:

Challenges to the constitutionality of a statute meet formidable restrictions. State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175. We review such challenges de novo. Wegleitner v. Sattler, 1998 SD 88, ¶ 4, 582 N.W.2d 688, 689 (citation omitted). We recognize a strong presumption of constitutionality. Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995)). To be invalidated a statute must be proved a breach of legislative power beyond a reasonable doubt. City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 181 (S.D.1994). Only when the unconstitutionality of a statute is plainly and unmistakably shown will we declare it repugnant to our constitution. South Dakota Educ. Ass’n v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994) (citations omitted)). If a statute can be construed so as not to violate the constitution, that construction must be adopted. Cary v. City of Rapid City, 1997 SD 18, ¶ 10, 559 N.W.2d 891, 893 (citation omitted). Our function is not to decide if a legislative act is unwise, unsound, or unnecessary, but rather, to decide only whether it is unconstitutional.

2000 SD 21, ¶ 5, 607 N.W.2d 1, 2 (internal quotations omitted).

[¶ 14.] In reviewing challenges to the sufficiency of the evidence, we “accept [the] evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict.” State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905. If any evidence, “including circumstantial evidence and reasonable inferences drawn therefrom” reasonably supports a theory of guilt, we will affirm the conviction. Id.

ANALYSIS AND DECISION

[¶ 15.] 1. Whether SDCL 22-22-23.1 (2001 Version) is unconstitutionally overbroad in violation of the First Amendment’s protection of Free Speech.

[¶ 16.] Martin was convicted on several counts of possession of child pornography in violation of SDCL 22-22-23.1. Before trial, Martin made an unsuccessful motion to dismiss the charges against him based upon his contention that SDCL 22-22-23.1 was unconstitutionally overbroad in violation of the First Amendment’s protection of free speech. On appeal, he reasserts his argument that the statute is unconstitutionally overbroad. As this argument presents a constitutional challenge to a statute, our review is de novo. Wegleitner, 1998 SD 88, ¶ 4, 582 N.W.2d at 689.

[¶ 17.] Freedom of speech is one of our most cherished and zealously guarded Constitutional liberties. The First Amendment to the United States Constitution declares that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. In addition, the South Dakota Constitution states that “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” SD Const, art. VI, § 5. As freedom of expression facilitates the free flowing exchange of ideas and debate which occupy the very heart of our democracy, any government regulation on the content of speech is generally subjected to the strictest of judicial review. Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, et al., 502 U.S. 105, 116, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991); see also Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972).

[¶ 18.] The prohibition upon government regulation of speech is not inviolate, however. The government may regulate defamation, “fighting words,” incitement, and obscene speech without violating the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); see Simon & Schuster, 502 U.S. at 127, 112 S.Ct. at 514 (KENNEDY, J., concurring); see also Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 125-26, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). On the other hand, government regulation of speech which is merely “offensive” will be subjected to the strict scrutiny standard of review. Cohen v. California, 403 U.S. 15, 22-26, 91 S.Ct. 1780, 1786-89, 29 L.Ed.2d 284 (1971); see RAV v. City of St. Paul, Minnesota, 505 U.S. 377, 395-96, 112 S.Ct. 2538, 2550, 120 L.Ed.2d 305 (1992) (striking down as overbroad an ordinance criminalizing certain types of “hate speech”).

[¶ 19.] Government regulation of pornography has proven to be a particularly contentious area in this country’s free speech jurisprudence. Pornography, unless obscene, is afforded First Amendment protection. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Over the years, the Supreme Court has utilized various tests in defining obscene material, including Justice Stewart’s memorable “I Know It When I See It” test, Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (STEWART, J., concurring), and the “Utterly Without Redeeming Social Importance” test employed in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Mass., 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966). Finally, in Miller v. California, the Supreme Court articulated a more practical three-part test to identify obscene material:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c)whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24, 93 S.Ct. at 2615 (internal citations omitted). Thus, in order for the government to freely regulate pornography, the material must be obscene under the Miller v. California three-part analysis.

[¶20.] Pornography involving children, however, is an unprotected class of speech and is afforded no constitutional protection under the First Amendment. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). States may therefore regulate and criminalize child pornography without satisfying the Miller v. California obscenity standard. Id. at 760-61, 102 S.Ct. 3348. In holding child pornography an unprotected class of speech, the Ferber Court identified the “State’s interest in safeguarding the physical and psychological well-being” of children as the underlying rationale for allowing the criminalization of possession and dissemination of pornography involving minors. Id. at 756-57, 102 S.Ct. 3348 (citation omitted). As the Supreme Comet recognized, “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944)).

[¶ 21.] In Ashcroft v. The Free Speech Coalition, the Supreme Court clarified the scope of governmental power to regulate child pornography. 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). In The Free Speech Coalition, the Court held provisions of the Child Pornography Prevention Act of 1996 (CPPA) which criminalized the production and possession of “sexually explicit images that appear to depict minors but were produced without using any real children” to be in violation of the First Amendment. Id. at 239-40, 122 S.Ct. 1389; 18 U.S.C.A. §§ 2256(8)(B), 2256(8)(D). Because Ferber’s rationale of classifying child pornography as unprotected speech relied upon the government’s interest in protecting children harmed in the production process, the CPPA’s criminalization of pornography that did not involve the exploitation of actual children was unconstitutionally overbroad. Id. at 250-52, 122 S.Ct. 1389. Although the government advanced several arguments linking “virtual” child pornography with the protection of children, the Supreme Court found any link to be too attenuated. Finally, because the statute did not contain an exception for speech with “serious literary, artistic, political, or scientific value,” it could not ban “virtual” child pornography as obscene under the Miller v. California analysis. Id. at 246-247, 122 S.Ct. 1389.

[¶ 22.] In this case, Martin contends the Supreme Court’s holding and rationale in The Free Speech Coalition clearly renders SDCL 22-22-23.1 unconstitutional. Before its repeal in 2002, SDCL 22-22-23.1 provided:

Any person who knowingly possesses any depiction fixed in any tangible medium of expression of a minor under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act or whose knowing possession encourages, aids, abets, or entices any person to commit a “prohibited sexual act” is guilty of a Class 6 felony.
For the purposes of this section, a depiction includes any depiction, representation, description, however perceived, and any data compilation or set of commands intended for use to store, to retrieve, or to generate such depictions, representations, or descriptions by any electronic means.
For purposes of this section, the term tangible medium of expression, includes, without limitation, printed materials, plastic media, photographs, film, and any electronic communications system used to display depictions.

SDCL 22-22-22 defined “prohibited sexual act” as “sexual intercourse, anal intercourse, masturbation, bestiality, sadism, masochism, fellatio, cunnilingus, or incest and any other sexual activity including nudity if such activity is depicted for the purpose of sexual stimulation.” According to Martin, it is the use of the word “depiction” that makes the statute overbroad because it could possibly criminalize possession of “a computer generated representation of a minor, whether real or not” or even “the mere written word referring to a fictional minor.”

[¶ 23.] Although Martin argues the statute under which he was convicted is overbroad because it may restrict protected speech, Martin’s possession of child pornography involving actual children is clearly unprotected under the First Amendment. Generally, “a facial challenge to a statute is not allowed unless the challenger’s own conduct involves eonstitu-tionally protected expression.” State v. Asmussen, 2003 SD 102, ¶ 3, 668 N.W.2d 725, 729. A challenge asserting the First Amendment doctrine of overbreadth is an exception to this general rule. Virginia v. Hicks, 539 U.S. 113, -, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148, 157 (2003); Asmussen, 2003 SD 102, ¶ 3, 668 N.W.2d at 729. In Hicks, the Supreme Court articulated the underlying rationale for this exception:

We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech' — ■ especially when the overbroad statute imposes criminal sanctions. Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech ... harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.

539 U.S. at -, 123 S.Ct. at 2196 (internal citations omitted).

[¶ 24.] Our recent decision in As-mussen .recognized the heavy burden a challenger asserting the doctrine of over-breadth must carry. 2003 SD 102, ¶ 5, 668 N.W.2d at 730. “In order to meet that burden, [a challenger] must show that the law’s application to constitutionally protected' speech is ‘real’ and ‘substantial’ in an absolute sense and in relation to the scope of the law’s plainly legitimate application.” Id., ¶ 6. This substantial over-breadth must be discernable “ ‘from the text of [the law] and from actual fact.’ ” Id. (quoting Hicks 539 U.S. at -, 123 S.Ct. at 2198, 156 L.Ed.2d at 159 (citation omitted)).

[¶ 25.] Here, Martin cannot carry this burden. The portions of the CPPA invalidated in The Free Speech Coalition were clearly aimed at imposing criminal penalties for the production or possession of “virtual” or “simulated” child pornography that did not involve actual children. 535 U.S. at 250-51, 122 S.Ct. at 1402. Thus, these provisions went beyond the protection of children rational of Ferber. Id. (“Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children, as were the materials in Ferber.”) (citation omitted). In addition, because the statute failed to provide an exception for speech with serious literary, artistic, political, or scientific value, it affected a substantial amount of protected speech and failed under the Miller v. California obscenity analysis. Id. at 249, 122 S.Ct. 1389.

[¶ 26.] On its face, we believe SDCL 22-22-23.1 only applies to child pornography involving actual children. Unlike the invalidated sections of the CPPA, SDCL 22-22-23.1 does not explicitly apply to virtual or simulated child pornography. When interpreting a statute we presume the legislature intended to enact a valid statute, and where “a statute can be construed so as not to violate the constitution,” we will adopt such a construction. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d at 2. Therefore, we interpret the word “depiction” as applying to pornography involving actual children only.

[¶ 27.] In Asmussen, we recognized “[i]n addition to the language of the statute, it is also necessary to view the legislative purpose of the law.” 2003 SD 102, ¶ 7, 668 N.W.2d at 730. Our interpretation that the statute only applies to actual children is also supported by the enabling legislation of SDCL 22-22-23.1, entitled an “Act [to] prohibit the possession of certain forms of computer-related child pornography.” 2000 SD Laws ch 105 (emphasis added). The use of the word “certain” in the legislation suggests the legislature did not intend the sweeping interpretation of SDCL 22-22-23.1 Martin advances.

[¶ 28.] Additionally, we note SDCL 22-22-23.1 is not fatally flawed because it lacks an exception for material with serious literary, artistic, political, or scientific value. Because the statute applies to pornography involving real, actual children, SDCL 22-22-23.1 need not meet the three-part obscenity test of Miller v. California. Ferber, 458 U.S. at 760-61, 102 S.Ct. at 3356-57.

[¶ 29.] The clear purpose of SDCL 22-22-23.1 is to protect the well-being of children harmed during the production process of child pornography. Protecting the health and welfare of our children is unquestionably a legitimate legislative goal. As the Ferber Court recognized, the future of our state and Nation depends upon the healthy and well-rounded development of our children. By purchasing, downloading, and saving images of child pornography on his computers, Martin actively supported the sexual exploitation of children. Through SDCL 22-22-23.1, the South Dakota legislature criminalized this repugnant act, and Martin has failed to demonstrate this statute’s “real” or “substantial” effect on constitutionally protected speech. Therefore, Martin’s challenge for overbreadth fails.

[¶ 30.] 2. Whether SDCL 22-22-22 (2001 Version) and SDCL 22-22-23.1 (2001 Version) are unconstitutionally vague in violation of the Fifth and Fourteenth Amendments’ guarantees of Due Process.

[¶ 31.] Martin next asserts SDCL 22-22-22 and 22-22-23.1 should be invalidated as unconstitutionally vague. Once again, we apply the de novo standard of review to constitutional challenges to statutes. Wegleitner, 1998 SD 88, ¶ 4, 582 N.W.2d at 689.

[¶ 32.] Although closely related, the overbreadth doctrine and the vagueness doctrine are “conceptually distinct.” Asmussen, 2003 SD 102, ¶ 10, 668 N.W.2d at 731. Generally, the over-breadth doctrine addresses First Amendment free speech concerns while the vagueness doctrine is grounded upon due process guarantees found in the Fifth and Fourteenth Amendment of the federal Constitution and Article VI § 2 of the South Dakota Constitution. Id. The standard we typically employ under a vagueness analysis is whether “the prohibited act or omission is expressed in terms so vague that reasonable people of ordinary intelligence might apply [it] differently.” Id. Such vagueness challenges are usually “examined in light of the facts of the case at hand.” United States v. Whiting, 165 F.3d 631, 634 (8th Cir.1999); Asmussen, 2003 SD 102, ¶ 10, 668 N.W.2d at 731. A central concern of our vagueness analysis is whether a statute is written in such a manner as to “permit selective or discriminatory enforcement.” Id.

[¶ 33.] Martin contends the words “depiction,” “knowingly possesses,” and “tangible medium of expression” render SDCL 22-22-22 and 22-22-23.1 unconstitutionally vague. In support of vagueness challenge, Martin raises several hypothetical situations which he believes illustrate the vague nature of these statutes. For example, Martin believes “depiction” and “knowingly possesses” are unconstitutionally vague because an image deleted from a computer but still accessible with special software or an impression of a passage deemed to be child pornography on a tablet page could fall under the statute. In addition, Martin postulates a painting on a rock could constitute child pornography under the definition of “tangible medium of expression.” Finally, Martin .argues that any attorney or law enforcement officer engaged in the investigation or prosecution of a child pornography case would be guilty of violating the statute.

[¶ 34.] We find Martin’s hypothetical situations unpersuasive. Martin admitted he purchased, downloaded, and saved pornographic images involving actual children on a number of occasions for at least three years. Martin even demonstrated to investigators how he accessed child pornography websites through e-mails he received. Martin admitted his “crusade” had “got[ten] a hold of him” and that he was sexually aroused by the images. Although Martin attempted to argue SDCL 22-22-23.1 was unconstitutionally over-broad, the statute undoubtedly prohibited the possession of pornographic pictures involving actual children. Looking at the facts at hand, we believe SDCL 22-22-22 and 22-22-23.1 provided Martin, a sixty-three year old man of normal intelligence, with adequate notice that his possession of child . pornography was forbidden. See Whiting, 165 F.3d at 634-35.

[¶ 35.] We also note Martin’s concern that any person involved in the investigation or prosecution of a case involving child pornography could be in violation of SDCL 22-22-23.1, is unfounded. In order to be criminalized under SDCL 22-22-23.1, a depiction of a “prohibited sexual act” must be used “for the purpose of sexual stimulation or gratification.” SDCL 22-22-22. Thus, unless used for sexual gratification or stimulation, pictures in the possession of attorneys and investigators involved in child pornography cases would not be criminalized under these statutes.

[¶ 36.] Courts in both Lawrence County and Butte County, South Dakota convicted Martin for possessing several pictures of pornography involving actual children. SDCL 22-22-22 and 22-22-23.1 provided adequate notice to any person of normal intelligence that such possession of child pornography was illegal. In addition, Martin has failed to demonstrate that these statutes are so vague as to invite selective prosecution. Thus, Martin’s claim that SDCL 22-22-22 and 22-22-23.1 are unconstitutionally vague must also fail.

[¶ 37.] 3. Whether Martin’s convictions on multiple counts of Possession of Child Pornography violated the Double Jeopardy Clause of the Fifth Amendment.

[¶ 38.] The trial court in Lawrence County convicted Martin on twenty counts of possession of child pornography, while the Butte County court convicted him on ten counts of possession of child pornography. Martin contends these convictions must be reversed on the grounds of multiplicity, in violation of the Double Jeopardy Clauses of the Fifth and Fourteenth Amendment of the federal Constitution and Article IX of the South Dakota Constitution. We review challenges raising the issue of multiplicity of charges under the de novo standard of review. State v. Chavez, 2002 SD 84, ¶ 10, 649 N.W.2d 586, 591. “[M]ultiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments.” State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43-44.

[¶ 39.] Martin cites to United States v. Erickson, an unpublished opinion, for the proposition that “a multiplicious Indictment is one that charges a single offense in multiple counts.” 2001 DSD 30, ¶ 5 (DSD 2001). Martin then cites to Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) for the idea that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” The purpose of the Blockburger test is to determine whether the multiple offenses are actually the same in law or fact. Id.

[¶ 40.] Applying the Blockburger test, we do not believe the acts for which Martin was convicted are the same in fact. The images of child pornography found on Martin’s computers were downloaded and saved at separate times. Moreover, these pictures involved the exploitation of different children. As the Wisconsin Supreme Court noted in a similar case:

Even had [Defendant] downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.

State v. Multaler, 252 Wis.2d 54, ¶ 58, 643 N.W.2d 437, 449 (holding twenty-eight charges against defendant for possession of child pornography were not multipli-cious).

[¶ 41.] Martin was charged and convicted for separate acts of downloading and possessing child pornography, and from the face of SDCL 22-22-23.1, we believe the Legislature intended to impose separate punishments in such a situation. Specifically, the statute provided that any “depiction” including but not limited to “any electronic communications system” constituted a Class 6 felony. Id. While Martin urges us to interpret “any electronic communications system” as encompassing an entire computer, we decline to do so. Despite Martin’s assertion that such prosecution allowed the prosecutor to “tear the book apart and charge each page as a separate count,” we believe each act of downloading and saving a picture of pornography involving children constituted a separate, prosecutable offense under SDCL 22-22-23.1.

[¶ 42.] Our interpretation of SDCL 22-22-23.1 comports with the underlying rationale of criminalizing child pornography, namely, the protection of the children who would otherwise be exploited during the production process of such material. Ferber, 458 U.S. at 756-57, 102 S.Ct. at 3355. This protection rationale extends to each child in each picture found on Martin’s computers. Furthermore, we agree that “[a] computer hard drive is much more similar to a library than a book; the hard drive can store literally thousands of documents and visual depictions.” United States v. Vig, 167 F.3d 443, 448 (8th Cir.1999). To find otherwise would allow the Legislature to impose only one penalty for the storage of literally thousands of files of pornography involving children on a computer. We do not believe this is what the Legislature intended. Accordingly, Martin’s prosecution for each image of child pornography on his computers violated neither the federal nor state constitution.

[¶ 43.] 4. Whether there was sufficient evidence to support Martin’s convictions on multiple counts of possession of child pornography.

[¶ 44.] Martin next challenges the sufficiency of the evidence presented by the prosecution to support his convictions for possession of child pornography in violation of SDCL 22-22-23.1. When reviewing the sufficiency of the evidence, we accept all evidence favorable to the verdict, and reasonable inferences therefrom, without weighing credibility or resolving conflicts. Bucholz, 1999 SD 110, ¶ 33, 598 N.W.2d at 905.

[¶ 45.] In this case, Martin admitted to viewing child pornography at various times over a period of three years on both his home and business computers. Martin confirmed he spent at least $1,000 of his own money on child pornography. He even demonstrated to investigators how he accessed these websites featuring child pornography through e-mails. Martin further admitted his “crusade” had “got[ten] a hold of him” and that he gained sexual arousal and pleasure from viewing these pictures to the extent that he experienced orgasms while dreaming about them. Finally, investigators were able to retrieve and print from Martin’s computers, actual copies of each picture for which he was convicted. Viewing this evidence in the light most favorable to upholding Martin’s conviction, we believe the prosecution clearly presented sufficient evidence to convict Martin for possession of child pornography in violation of SDCL 22-22-23.1.

[¶ 46.] 5. Whether Martin’s ten-year probationary periods for his convictions under SDCL 22-22-23.1 unlawfully exceeded the maximum statutory limits.

[¶ 47.] After sentencing Martin to two years in the penitentiary for each conviction, both trial courts further imposed a ten-year probationary period. For his fifth point of error, Martin maintains that this ten-year probationary period unlawfully exceeded the maximum statutory limits allowed for violating SDCL 22-22-23.1.

[¶ 48.] We do not believe Martin can show that the imposition of this ten-year probationary period is in error. Martin received the maximum penalty for each violation of SDCL 22-22-23.1, which is two years. Thus, in Lawrence County where Martin was convicted on twenty separate counts, the trial court could have sentenced Martin to serve a maximum of forty years. In Butte County, the trial court could have sentenced Martin to a maximum of twenty years in the penitentiary. Martin, however, had all but forty-five days of his total sentence suspended. The trial courts’ imposition of a ten-year probationary period is less than the total time Martin could have received for his multiple violations of SDCL 22-22-23.1 and does not exceed the statutory limit.

[¶ 49.] 6. Whether the trial court properly prohibited Martin from accessing the Internet, using a computer, and possessing pornography for ten years as part of his sentence.

and

[¶ 50.] 7. Whether the trial court properly prohibited Martin from any unsupervised contact with children under the age of eighteen years for a period of ten years as part of his sentence.

[¶ 51.] The court in Lawrence County prohibited Martin from owning or possessing a computer for ten years. In Butte County, Martin was prohibited from accessing the Internet or having unsupervised contact with minors for ten years. Both trial courts prohibited Martin from possessing pornography for a period of ten years.

[¶ 52.] Martin contends that the prohibition against pornography aspect of his sentence must be reversed for vagueness. In other words, Martin worries that he may unknowingly violate this condition of his sentence because there is no bright line rule as to what constitutes “pornography.” We acknowledge that “one [person’s] vulgarity is another’s lyric,” and recognize the possibility that “one [person’s] pornography may be another’s keepsake.” Cohen, 403 U.S. at 25, 91 S.Ct. at 1788; United States v. Cabot, 325 F.3d 384, 385 (2nd Cir.2003). However, we decline to strip trial courts of this power where the “condition at issue in the instant case is reasonably related to [the] offense and to the need to prevent recidivism and protect the public.” United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001).

[¶ 53.] We also note that it is not the function of this Court to provide a rigid definition of “pornography.” If the State alleges Martin is in violation of the pornography aspect of his probation, Martin is entitled to notice and a hearing before any further deprivation of his liberty can occur. State v. Christian, 1999 SD 4, ¶ 15, 588 N.W.2d 881, 883 (citing Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636, 642 (1985) (citation omitted)). At the revocation hearing, Martin would have the opportunity to be heard and to present evidence as to whether the given material was actually “pornography” or something less. Thus, at this time we decline to reverse the trial courts’ order prohibiting Martin from possessing pornography for a period of ten years.

[¶ 54.] Martin also challenges the trial court’s prohibition against him possessing a computer or accessing the Internet during the ten-year probationary period. Martin argues that such a condition is “overly restrictive.” At the outset, we note that the prohibition against the computer use seeks to protect the public and prevent recidivism. Paul, 274 F.3d at 169. Moreover, it is clearly a less harsh method of achieving these two goals than the alternative of imprisoning Martin for the same ten-year period.

[¶ 55.] Such prohibitions have been upheld as consistent with the goals cited above. Paul, United States v. Crandon, 173 F.3d 122 (3d Cir.1999); United States v. Fields, 324 F.3d 1025 (8th Cir.2003); United States v. Zinn, 321 F.3d 1084 (11th Cir.2003). We acknowledge that other courts addressing the issue have concluded to the contrary. United States v. Sofsky, 287 F.3d 122 (2nd Cir.2002); United States v. Freeman, 316 F.3d 386 (3d Cir.2003).

[¶ 56.] We conclude that those cases upholding these prohibitions are better reasoned because they offer the sentencing court the most flexibility. Our holding offers courts options other than locking up the defendant or risking unfettered access to the material which this opinion has already demonstrated victimizes young children. By the same rationale, we uphold the aspect of the sentence which prohibits Martin from having any unsupervised contact with minors for ten years.

[¶ 57.] Affirmed.

[¶ 58.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶ 59.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 60.] I concur specially to point out that prohibiting the Defendant from owning or possessing a computer may be excessive punishment. The Defendant is required to submit at any time or place to a loarrantless search and seizure and his computer can therefore be frequently searched and even continually monitored. A personal computer is frequently a necessity in today’s life and business. This portion of the sentence is unreasonable and should be vacated.

      . In 2002, the South Dakota Legislature repealed SDCL 22-22-23.1 and 22-22-22 and enacted SDCL 22-22-24 ef seq. to SDCL 22-22-25 in their place. Because Martin was convicted under SDCL 22-22-23.1 and 22-22-22, this appeal only challenges these statutes.

      . 18 U.S.C. § 2256(8)(B) extended the prohibition against child pornography to “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “appears to be, of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(D) further criminalized any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicted "a minor engaging in sexually explicit conduct.”

      . To illustrate the overbreadth of the CPPA sections at issue in The Free Speech Coalition, the Court noted that it could allow the criminalization of Shakespeare’s Romeo and Juliet, along with the recent, widely acclaimed movies American Beauty and Traffic.

      . Arguably this "expansive remedy” is not applicable to this case as SDCL 22-22-23.1 has been repealed. Thus, no one else other than Martin will be faced with the prospect of being convicted under its terms. Nevertheless, we apply the more lenient rule as set forth in Hicks.

      . The Legislature specifically addressed this situation in 2003 by enacting SDCL 22-22-24.19, entitled “Child sexual exploitation laws inapplicable to certain official duties.”


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2003 SD 154
    Earl G. BOXA, Elizabeth Boxa, Brent Combs, as guardian ad litem for Johnathan L. Combs, Brent Combs, Jennifer Combs, Shirley A. Vosika, Polly Anne Cerney, Emil J. Cerney Estate, Marjorie Harrison, and Verne Ellston, Plaintiffs and Appellees, v. Paul VAUGHN, Paul Vaughn Insurance Inc., Defendants and Appellants, and Scott Vanderbeek, Defendant.
    No. 22756.
    Supreme Court of South Dakota.
    CONSIDERED ON BRIEFS ON Oct. 6, 2003.
    Decided Dec. 30, 2003.

      J.M. Grossenburg, Winner, for plaintiffs and appellees.
    Mark V. Meierhenry, Clint Sargent of Danforth, Meierhenry & Meierhenry, Sioux Falls, for defendants and appellants.
   SABERS, Justice.

[¶ 1.] Plaintiff purchasers brought suit against Paul Vaughn for damages, alleging that he sold purchasers unregistered business opportunities in violation of the Business Opportunities Act (Act). SDCL 37-25A-7. Vaughn did not dispute that he sold the purchasers unregistered business opportunities but he raised the affirmative defenses of waiver and failure to mitigate damages. Purchasers moved for directed verdict at the close of Defendant’s evidence arguing that (1) the affirmative defense of waiver was not permissible under the Act. The trial court agreed and granted purchasers’ motion for directed verdict and found that (2) Defendant did not meet his burden to show Plaintiffs failed to mitigate damages. Vaughn appeals. We affirm (1) for a different reason and affirm (2).

FACTS

[¶ 2.] Vaughn approached each of the Plaintiffs and offered them an investment opportunity with a 14.1% return. The plan was for Plaintiffs to purchase pay telephones for $7,000 each, and then lease them back to Phoenix Telecom which would pay Plaintiffs $82.25 per month. Each Plaintiff also entered into an “Option to Sell” agreement with Phoenix entitling Plaintiffs to terminate the lease at the end of five years and Phoenix would buy back the telephones for the original purchase price. Plaintiffs were told they could pull their money out of the plan at any time and that there was little risk in the investment.

[¶ 3.] Vaughn sold phones from September 1999 until January 2000 when he received a cease and desist order from the South Dakota Division of Securities (Division). The Division found that Phoenix’s products were business opportunities which needed to be registered with the Division. Phoenix was also issued a cease and desist order. After the cease and desist orders were issued, the Division directed Phoenix to send an offer of rescission to the South Dakota purchasers. On March 3, 2000, Phoenix sent a letter to each Purchaser informing them that Phoenix had failed to register the product with the Division and that Plaintiffs were entitled to rescind their purchases. Agents were told by Phoenix to “contact each Lessor and advise them to expect the letter, and then reassure the client that they should not be alarmed upon receipt.”

[¶ 4.] Plaintiffs testified that Vaughn urged them not to rescind, telling them that he would take care of the problem and encouraging them to hold on to their “investment.” Although the parties dispute the reason why, each of the Plaintiffs chose not to rescind their contracts. By July of 2000, Phoenix could no longer make its lease payments to the Plaintiffs. Phoenix transferred its leases to ETS Payphones. Plaintiffs agreed to the transfer, but in September 2000, ETS stopped making lease payments. Phoenix and ETS have filed for bankruptcy.

[¶ 5.] On September 29, 2000, the SEC filed a complaint against ETS alleging that ETS engaged in fraud in the offer and sale of unregistered securities. In its complaint, SEC asserts that investors were not told ETS was losing money, had a negative net worth and was dependent on new investors to continue in business. The “investment opportunity” was actually a pyramid, or “Ponzi scheme” wherein Phoenix and ETS used the money they received from later purchasers to pay earlier purchasers.

[¶ 6.] On October 19, 2000, the original Plaintiffs filed an amended summons and complaint against Vaughn for damages, alleging that he sold unregistered business opportunities in violation of SDCL 37-25A-7. The parties went to trial, and at the close of evidence, Plaintiffs moved for a directed verdict on the basis that Vaughn’s affirmative defense of waiver was not allowed under the Act. The trial court granted the motion, directed a verdict in Plaintiffs’ favor, and entered a judgment for purchasers’ statutory damages less lease payments received. Vaughn appeals raising two issues:

1. Whether the Business Opportunities Act’s anti-waiver provision precludes the affirmative defense of waiver, and if not, whether waiver was established.
2. Whether Vaughn established that Plaintiffs failed to mitigate damages.

STANDARD OF REVIEW

[¶ 7.] Our standard of review of a trial court’s ruling on a motion for directed verdict is well settled:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

Veeder v. Kennedy, 1999 SD 23, ¶ 25, 589 N.W.2d 610, 617 (quoting Border States Paving, Inc., v. S.D. Dep’t of Transp., 1998 SD 21, ¶ 10, 574 N.W.2d 898, 901) (citations omitted). Whether claims brought under SDCL 37-25A-48 are subject to the affirmative defense of waiver is a question of statutory construction which this Court reviews de novo. In re Estate of Foss, 2001 SD 140, ¶ 5, 637 N.W.2d 30, 31 (citation omitted).

[¶ 8.] 1. WHETHER THE BUSINESS OPPORTUNITIES ACT’S ANTI-WAIVER PROVISION PRECLUDES THE AFFIRMATIVE DEFENSE OF WAIVER, AND IF NOT, WHETHER WAIVER WAS ESTABLISHED.

[¶ 9.] SDCL 37-25A-7 provides:

No person may offer or sell any business opportunity in this state unless the business opportunity is registered under this chapter or is exempt under § 37-25A-3.

Vaughn concedes that by selling the payphone business opportunity to Plaintiffs, he violated SDCL 37-25A-7. Therefore, the only question is the extent he is liable to Plaintiffs.

[¶10.] SDCL 37-25A-48 provides in part:

Any person who violates §§ 37-25A-7, [] is liable to the purchaser who may sue either at law or in equity for rescission, for recovery of all money or other valuable consideration paid for the business opportunity and for actual damages, together with interest at the legal rate from the date of sale, reasonable attorney’s fees and court costs.

When the Division discovered that Phoenix was in violation of SDCL 37-25A-7, it required Phoenix to offer all purchasers the option of rescinding the sales contract and recovering their investment. Phoenix complied with the demand and sent this letter to each purchaser:

It has been brought to our attention by the Director of the Division of Securities of the Department of Commerce and Regulation ... that business opportunities were sold by [Phoenix Telecom] pri- or to complying with all of the requirements of the South Dakota Business Opportunity Act.
Therefore, it is necessary at this time to inform you of your right to rescind your purchase from the above referenced company and we hereby offer to repurchase the interest sold for a purchase price equal to the full amount paid therefore, plus interest at an annual rate of 12 per cent per annum from the date of purchase. If you elect to rescind the offer, ownership of the payphones and equipment you purchased from Phoenix Telecom, L.L.C. must be transferred to Phoenix Telecom, L.L.C. as well as all rights and interests in those payphones and equipment.
If you elect to rescind the offer, you will be entitled to the receipt of $7,000.00 per unit plus interest less any income received from lease payments. Interest shall accrue from the date of purchase until the date of payment. If you accept the offer, payment will be made to you within thirty (30) days of receipt of your written acceptance.
This offer shall continue in force for thirty (30) days from the date on which this offer is received by you. Please notify our office of your decision to accept this offer of rescission by signing at the bottom of this letter and returning this letter to our office in the enclosed envelope. If we do not receive written notice from you accepting this offer of rescission before the expiration of thirty (30) days, we will presume you are refusing this offer and thus affirming your previous purchase from the above-referenced company.

None of the Plaintiffs accepted the offer to rescind. Vaughn argues that by failing to accept the offer within thirty days, Plaintiffs waived their right to recover against him under SDCL 37-25A-48. ■ Plaintiffs counter that SDCL 37-25A-54 precludes Vaughn from asserting the affirmative defense of waiver. SDCL 37-25A-54 provides:

Any condition, stipulation or provision binding any purchaser of a business opportunity to waive compliance with or relieving a person from any duty or liability imposed by or any right provided by this chapter or any rule or order issued pursuant to this chapter is void.

Relying on the reasoning of the Fifth Circuit Court of Appeals’ decision in Meyers v. C & M Petroleum, 476 F.2d 427 (5th Cir.1973), the trial court determined that SDCL 37-25A-54 precludes sellers from utilizing the affirmative defense of waiver. However, the language of this statute is insufficient to support the trial court’s holding that the affirmative defense of waiver is barred in any case where there is a violation of the Act.

[¶ 11.] The opening language which provides “any condition, stipulation or provision,” clearly implies that the statute is prohibiting agreements between the parties that would waive any rights, remedies or liabilities under the Act. This is not the same as precluding the affirmative defense of waiver. Waiver is when “one in possession of any right, whether confirmed by law or contract, and with full knowledge of the material facts, does or forbears something inconsistent with the existence of the right or of his intention to rely on it.” Phipps v. First Federal Savings and Loan, 438 N.W.2d 814, 817 (S.D.1989) (additional citations omitted). There are many instances when one could do something inconsistent with a known right without entering into an agreement to waive the remedies, rights and liabilities under the Act.

[¶ 12.] Chapter 37-25A does not specifically address the availability of affirmative defenses. “In South Dakota, the rules of common law are in force, except where they conflict with the will of the sovereign power, which is expressed in the constitution, statutes and ordinances of the state.” McKellips v. Mackintosh, 475 N.W.2d 926, 928 (S.D.1991) (citing SDCL 1-1-24). Absent statutory instruction to the contrary, affirmative defenses remain available to defendants. Therefore, SDCL 37-25A-54 does not unconditionally bar the affirmative defense of waiver. Instead, it prohibits sellers from (1) using contractual provisions waiving rights, remedies and liabilities under the Chapter as a shield to prevent buyers from recovering for wrongful activity under the Chapter; or (2) using those provisions as a sword to enforce contracts which are otherwise unlawful under the Act.

[¶ 13.] Vaughn asserts that the purpose of the anti-waiver provision of SDCL 37-25A-54 is “to prohibit sellers of business opportunities from circumventing the Act by entering into private agreements with purchasers during the initial sales transaction to waive compliance with the registration requirements of the act.” (Emphasis in original.) This interpretation is correct as far as it goes, but too narrow, as the statute’s language refers to “any condition, stipulation or provision” that binds “any purchaser” and covers “any duty or liability [■] or any right” under the Chapter. There is nothing in the language of the statute which restricts its application to agreements made in the initial sales transaction or to the registration requirements of the Act. As the language provides, any agreement, made at any time during the course of the relationship to waive any requirement of the Act is void and unenforceable. Had Plaintiffs accepted the offer to rescind, they would have waived no rights, remedies or liabilities under the Act. The letter purported to offer Plaintiffs every statutory remedy and right to which they were entitled against Phoenix under the Act at the time of the offer. The offer was rejected by Plaintiffs, and no “condition, stipulation or provision binding any purchaser” was created, therefore, the threshold requirement of the statute was not met. Since neither acceptance nor rejection of the offer would have waived anything under the Chapter, it does not fall within the anti-waiver provision.

[¶ 14.] Moreover, Vaughn did not establish that Plaintiffs waived their right to bring an action against him through rejection of this offer. The letter dealt only with the offer to rescind Purchasers’ contracts with Phoenix. Vaughn violated SDCL 37-25A-7 by selling an unregistered business opportunity in South Dakota. For this, he was independently liable to Purchasers under SDCL 37-25A-48, regardless of Phoenix and its successors’ liability or non-liability. SDCL 37-25A-48 allows the purchaser to sue “any person” who violates the enumerated laws and does not preclude suit against both the actual seller and the company for whom he is selling. The letter offers Vaughn no protection from liability for his violations of SDCL 37-25A-7.

[¶ 15.] Vaughn also failed to establish the necessary elements to prove that Plaintiffs waived their right to recover against him. As t we’ve noted, waiver is established when it is shown that “one in possession of any right, whether confirmed by law or contract, and with full knowledge of the material facts, does or forbears something inconsistent with the existence of the right or of his intention to rely on it.” Phipps, 438 N.W.2d at 817 (additional citations . omitted) (emphasis supplied). First, Vaughn has failed to show that through rejection of Phoenix’s offer, Purchasers did anything inconsistent with their statutory right to bring suit against or recover from him. Second, Vaughn has failed to show that Purchasers had “full knowledge of the material facts” when they chose not to rescind their contracts after receipt of the letter. On the contrary, it appears that Phoenix, with Vaughn’s assistance, did everything in its power to convince Purchasers that there was nothing more than a technical glitch in their operations. Purchasers had no indication at the time they received the letter that the company was incapable of continuing payments. Certainly the fact that bankruptcy was imminent was a “material fact” which Purchasers needed to know in order to waive their right to civil recovery.

[¶ 16.] Vaughn contends that he was an unwitting seller of the unregistered business opportunity, and as such, it is unfair to leave him responsible for the full statutory damages. However, as between the innocent purchasers, whom the Act seeks to protect, and the seller engaged in unlawful practices, it is clear the seller should bear the burden of the Act. Moreover, the provision under which Vaughn is liable does not limit liability to those who knowingly or willfully violate the Act.' In addition, under the judgment, Vaughn is only liable to lessors for statutory damages less lease payments received from Phoenix or ETS. Finally, nothing precludes Vaughn from suing Phoenix, ETS and their agents for contribution. In fact, Vaughn has done so.

[¶ 17.] We hold that although the Act permits a seller of a business opportunity to assert the affirmative defense of waiver, Vaughn’s attempt to do so in this case fails on the merits. There being no evidence to sustain Vaughn’s affirmative defense of waiver, we affirm the directed verdict in favor of Plaintiffs.

[¶ 18.] 2. WHETHER VAUGHN ESTABLISHED THAT PLAINTIFFS FAILED TO MITIGATE DAMAGES.

[¶ 19.] Vaughn also argues that he should have been able to present the defense of failure to mitigate damages to the jury. This is an affirmative defense which must be raised and proven by the proponent. See Mash v. Cutler, 488 N.W.2d 642, 648 (S.D.1992) (citations omitted). Here, the trial court held:

The court, in considering the issue of whether or not to give to the jury the issue of mitigation of damages does consider the evidence presented at this trial in a light most favorable to the nonmov-ing party. The court finds that the damages that are allowed are statutory in nature, that there is no evidence presented to the court which is in any way disputed as to the amount of damages, even considering the evidence in a light most favorable to the defendants.

This finding is supported by the fact that Phoenix and ETS, both of whom are now in bankruptcy, and who were unable to make interest payments, were unlikely to pay the principal and interest had rescission been accepted.

[¶ 20.] However, even if Phoenix would or could have fully refunded all monies to which Plaintiffs were entitled, Vaughn failed to establish this defense. Plaintiffs were sent the letter offering rescission on March 3, 2000 and were given thirty days to respond. It was not until four months after the offer of rescission that Phoenix ceased making payments to the Purchasers. Even after the first time their lease checks were returned, none of the Purchasers were aware that they had been taken in by a nationwide. scam. On July 20, 2000, Phoenix sent a letter to the Purchasers regarding the failure to make the lease payments. The letter acknowledged that Phoenix could not make payments, but offered the Purchasers the “opportunity to exchange your lease with Phoenix for a new five-year lease with ETS.” The letter goes on to promote the viability of ETS as a company and provides this warning: “Phoenix [] does not have the ability to continue operating ... By executing [the termination agreement, ETS lease and ETS option to sell agreement], you can ensure that your next lease payment is on time and will continue each month until your lease expires.” (Emphasis supplied.)

[¶ 21.] Generally, damages are not recoverable for losses the plaintiff could reasonably have avoided. Restatement (Second) of Contracts, § 350 (2003). However, to apply this defense in this situation would require Plaintiffs to have foreseen that four months after the offer of rescission, Phoenix’s pyramid or “Ponzi scheme” would collapse and they would be left with substantial losses. At the time the offer of rescission lapsed, Plaintiffs were still unaware that they faced potential injury. They were also unaware that Phoenix, was perilously close to bankruptcy. Plaintiffs and the Division believed that all that was needed was for Phoenix and Vaughn to properly register. To require them to predict this outcome, especially in the face of the fraud perpetrated upon them, would exceed the reasonable diligence requirement.

[¶ 22.] Vaughn seeks to rely on Phoenix’s offer of rescission to shield him from liability, but in doing so, attempts to distance himself from the actions of ETS and Phoenix which served to actively discourage Plaintiffs from seeking rescission. An example of the actions which may have prevented Plaintiffs from going forward at an earlier date is a letter found in Plaintiffs’ Exhibit 1 from ETS, Phoenix’s successor in interest. The letter, which is set forth in full in the footnote below, attempts to prevent any action by a lessor against ETS.

[¶ 23.] The defense of mitigation of damages does not require more than that the injured party exercise diligence to avoid further loss. Here, Plaintiffs became aware that they would incur loss when ETS ceased making payments in September 2000. Plaintiffs filed suit in October 2000. Vaughn did not establish a lack of diligence by Plaintiffs. Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, and MILLER, Retired Justice, concur.

[¶ 25.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

      . The original purchasers were Earl and Elizabeth Boxa, Jonathon, Brent and Jennifer Combs, Shirley Voskia, Polly Anne Cerney, the Emil J. Cerney Estate, Marjorie Harrison and Verne Ellston. Some of the plaintiffs were dismissed from the suit prior to trial. ' For ease of reading, those remaining will be referred to collectively as “Purchasers” or “Plaintiffs. ”

      . The SEC believes that Phoenix and ETS are “very close.”

      . It is noteworthy that by the time the purchasers brought this suit against Vaughn, Phoenix was insolvent and had been acquired by ETS, which also became insolvent.

      . Compare SDCL 37-25A-48 at ¶ 10 with SDCL 37-25A-47, under which a knowing violator can be prosecuted. SDCL 37-25A-47 provides in part, “[a]ny person who willfully violates § 37-25A-7 [] is guilty of a Class 5 felony[.]” (Emphasis supplied).

      . Dear Lessor,
      ETS received your letter dated September 18, 2000, and we apologize for the delay in reply. We are sure you can understand we have been receiving a large volume of letters and phone calls and, unfortunately, do not have the resources to reply in the expeditious manner we would like.
      On September 11, 2000, ETS Payphones, Inc. (“ETS”) filed a voluntary petition in the United States Bankruptcy Court, District of Delaware under Chapter 11 of the Bankruptcy Code. Upon filing this petition, a statutory stay became effective which protects ETS against the pursuit of actions by any party with respect to any assets or other rights of ETS that are considered property of the bankruptcy estate. This means that you, as a creditor of ETS, are precluded from taking any action against ETS with respect to any alleged pre-bankruptcy debt. This prohibition is so broad as to preclude you, our creditor, from making requests for payment during the stay period.
      A willful violation of the stay may result in you being held in contempt by the United States Bankruptcy Court. Further you may be liable for compensatory and punitive damages resulting from your violation of the stay. We at ETS wish we could furnish you with more information at this point, but there are formal proceedings associated with the administration of ETS reorganization which must and will be followed. This is a statutorily mandated process designed to protect you, the creditor, and ETS. ETS must insist that this process be allowed to take its course without interference from the creditors. We will achieve this goal only through your understanding and patience.
      Sincerely,
      ETS Payphones, Inc.
      Leasing Department


author: KONENKAMP, Justice (on reassignment). GILBERTSON, Chief Justice SABERS, Justice

text:
    2004 SD 3
    Rehearing of Decision of South Dakota Supreme Court in the Matter of Loren POURIER, d/b/a Muddy Creek Oil and Gas, Inc., and Muddy Creek Oil and Gas, Inc., Plaintiffs and Appellants, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Defendant and Appellee.
    No. 22221.
    Supreme Court of South Dakota.
    Order Granting Rehearing April 2, 2003.
    Argued on Rehearing on May 29, 2003.
    Reassigned June 27, 2003.
    Decided Jan. 7, 2004.

      Vanya S. Hogen, Collette Routel, Richard A. Duncan of Faegre & Benson L.L.P., Minneapolis, Minnesota, Attorneys for plaintiffs and appellants.
    Lawrence E. Long, Attorney General, David D. Wiest, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
    Jennifer Fyten, Flandreau, South Dakota, Attorney for Amicus Curiae, Oglala Sioux Tribe.
    Terry L. Pechota, Rapid City, South Dakota, Attorney for Amicus Curiae, Rosebud Sioux Tribe.
   KONENKAMP, Justice (on reassignment).

[¶ 1.] Muddy Creek Oil and Gas, Inc., operates Big Bat’s Texaco on the Oglala Sioux Reservation. Loren Pourier, an enrolled member of the Oglala Sioux Tribe, is the sole owner of the company. Muddy Creek sought a refund of the South Dakota motor fuel tax it paid. In Pourier v. South Dakota Dep’t of Revenue, 2003 SD 21, 658 N.W.2d 395 (Pourier I), we unanimously ruled that the taxes were illegally collected because the Hayden-Cartwright Act does not contain express congressional authorization to tax Native Americans on Indian reservations. We also decided that Muddy Creek’s consumers, rather than Pourier and his company, bore the legal incidence of the tax, and therefore the consumers were entitled to most of the tax refund. . Only to the extent that Pourier and Muddy Creek used gasoline as consumers would they be permitted to claim refunds. We reversed and remanded for proceedings to allow for payment to reservation Indian consumers who apply for and prove their entitlement to refunds. Lastly, in Pourier I, with two justices dissenting and one writing specially, two members of this Court also ruled that any “limitation periods imposed by the motor fuel taxation scheme are inapplicable in this case.”

[¶ 2.] After our opinion was handed down, both Pourier and the State petitioned for rehearing, urging us to reconsider certain portions of Pourier I. We granted the State’s petition, solely on the question of the proper limitations period for refund applications. We now hold that the limitations period applicable in this case is fifteen months under SDCL 10-47B-141 and that claims for times predating December 17, 1997 are untimely. Accordingly, we vacate Issue 4 of Pourier I, 2003 SD 21, ¶¶ 35-38, 658 N.W.2d at 406-07, and replace it with the following discussion on the proper limitations period. In all other respects, the decision in Pourier I will stand.

Statute of Limitations

[¶ 3.] In November 1995, Muddy Creek received motor fuel and special fuel licenses from the South Dakota Department of Revenue. In the following years, it filed a succession of refund claims and objections to collection of motor fuel taxes. All claims were denied. In the administrative appeal, the hearing examiner found that no claims were timely for periods before December 17, 1997. All the earlier claims were untimely either because Muddy Creek did not appeal the final decisions of the Department of Revenue denying them or because the claims were filed late. Muddy Creek does not dispute the hearing examiner’s findings on the factual timeliness. of the refund claims. Instead, it contends that no statute of limitations applies or that a longer statutory limitations period applies.

[¶ 4.] In agreeing with Muddy Creek’s argument, Pourier I did not analyze any specific statute of limitations, since two members of the Court ruled that the “justifications [for limitations periods] are simply not present in this case.” 2003 SD 21, ¶ 38, 658 N.W.2d at 407. They reasoned that “[b]ecause the State exceeded its authority in imposing this tax, the limitation periods imposed by the motor fuel taxation scheme are inapplicable in this case.” Id. ¶ 37. On further reconsideration, however, we now conclude that the fifteen-month limitations period applies here. SDCL 10-47B-141 provides:

Any claim for refund of motor fuel or special fuel tax shall be received by the department within fifteen months of the date the fuel was originally purchased in order to be accepted for refund. Fuel purchased more than fifteen months from the date the claim is received is forever barred from refund eligibility.

Muddy Creek cites other possible statutes, such as SDCL 15-2-13 (six years for common law actions) and SDCL 10-59-19 (three years for overpaid taxes), but those do not specifically deal with the time limit for obtaining refunds on motor fuel taxes. In cases where more than one statute arguably touches upon the same subject matter, we presume that the statute with the more specific language “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 (quoting Moss v. Guttormson, 1996 SD 76, ¶10, 551 N.W.2d 14, 17).

[¶ 5.] Muddy Creek cites tax deed cases like Hough v. Perkins County, 72 S.D. 236, 32 N.W.2d 632, 633 (1948) to argue that South Dakota’s fifteen month limitations period for seeking a refund on motor fuel tax is “inoperative” and inapplicable. These tax deed cases have nothing to do with tax refunds. They stand only for the proposition that certain defects in a tax deed are jurisdictional against which a statute of limitations is necessarily inoperative. See also Cornelius (Lynch, Intervener) v. Ferguson, 23 S.D. 187, 121 N.W. 91, 93 (1909). These decisions follow a long line of South Dakota cases standing for the rule that persons cannot be deprived of their real property through the sale of a tax deed if the defects in the process of obtaining the deed are so serious as to deprive owners of their property without due process of law. Here, with respect to refunds on motor fuel tax, Indian taxpayers will not be deprived of due process. They will have a right to seek a refund within a reasonable time.

[¶ 6.] Nor will the case of Pederson v. Stanley County, 34 S.D. 560, 149 N.W. 422 (1914) avail Muddy Creek. In Pederson, this Court held that the common law rule that taxes voluntarily paid cannot be recovered has no application to an instance where the tax was illegally imposed by an outside jurisdiction. Aside from the fact that no statute of limitations was at issue in Pederson, we now have a specific statute governing the recovery of improperly collected motor fuel taxes. See SDCL 10-47B-141. The Legislature is at liberty to override common law rules by statutory enactment. SDCL 1-1-24.

[¶ 7.] As for the constitutionality of our fifteen-month statute, the United States Supreme Court has definitively authorized reasonable procedural limitations, including “relatively short statutes of limitation” applicable to tax refund claims. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 45, 110 S.Ct. 2238, 2254, 110 L.Ed.2d 17, 41 (1990). The Supreme Court acknowledged this vital issue in dealing with tax refunds, endorsing a State’s “exceedingly strong interest in financial stability.” Id. at 37, 110 S.Ct. 2238. With sixty-six percent of South Dakota’s highway funding coming from motor fuel taxes, a short time to obtain refunds is imperative to maintain fiscal soundness. So long as they provide a “clear and certain remedy,” indeed, “the States are afforded great flexibility in satisfying the requirements of due process in the field of taxation.” Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 587, 115 S.Ct. 2351, 2354, 132 L.Ed.2d 509, 516 (1995) (citations omitted). During all times at issue here, South Dakota provided a remedy for obtaining a motor fuel tax refund to those who complied with the procedural requirements in the statutes. Muddy Creek did not comply with those requirements and thus it cannot revive its untimely claims; they are foreclosed and “forever barred from refund eligibility.” SDCL 10-47B-141.

[¶ 8.] Because we have declared unconstitutional the State’s collection of motor fuel tax from Muddy Creek, consumers who timely seek and prove their entitlement to a refund may recover the taxes they paid. SDCL 10-47B-131.2. We remand this matter for a hearing where Pourier and Muddy Creek can prove the amount of motor fuel tax they paid as consumers for their personal use. The brunt of these taxes were paid by Muddy Creek’s consumers because the hearing examiner found that “Muddy Creek’s price at the pump includes South Dakota’s $.22 per gallon fuel tax.” Since Muddy Creek’s customers bore the legal and economic incidence of this tax, a fact the State concedes, any person who was enrolled member of the Oglala Sioux Tribe and who paid the invalidly collected motor fuel tax may timely seek a refund for the taxes paid as part of their purchases made during the same period applicable to Muddy Creek’s timely claims. SDCL 10-47B-131.2 provides in relevant part that consumers “of motor fuel [...] may apply for and obtain a refund of fuel taxes imposed and paid to this state, if a state or federal court of final appeals finds that taxation of the purchase or use the fuel is preempted by federal law or unconstitutional.” Thus, to the extent that Muddy Creek’s claims were timely, then these tribal members, being the actual aggrieved consumers, may be deemed to have their claims considered timely.

[¶ 9.] Reversed and remanded as modified.

[¶ 10.] AMUNDSON, Retired Justice and RUSCH, Circuit Judge, concur.

[¶ 11.] GILBERTSON, Chief Justice, concurs with writing.

[¶ 12.] SABERS, Justice, dissents.

[¶ 13.] RUSCH, Circuit Judge, sitting for ZINTER, Justice, disqualified.

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

GILBERTSON, Chief Justice

(concurring).

[¶ 15.] In Pourier v. SD Dept. of Revenue, 2003 SD 21, 658 N.W.2d 395, I raised a concern over the application of SDCL 10-47B-131.2 and its 15-month statute of limitation, SDCL 10-47B-141, to this case. I felt their validity hinged on whether “those tribal members paid [the gas tax] under coercion and duress.” 2003 SD 21, ¶ 49, 658 N.W.2d at 408.

[¶ 16.] Thereafter this Court granted a rehearing on the refund issue. In the rehearing proceeding, neither party nor the amici convincingly argued that remand was necessary to determine whether the tribal members paid the gas tax under coercion.

[¶ 17.] Therefore, the validity of SDCL 10-47B-131.2 and SDCL 10-47B-141 stands. McKesson Corp. v. Division of Alcoholic Beverages, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). As such, I join in the opinion of the Court.

SABERS, Justice

(dissenting).

[¶ 18.] Upon the grant of the Attorney General’s Petition for Rehearing, the issue is which statute of limitation applies, if any, to an illegally collected, unconstitutional tax.

[¶ 19.] The Attorney General argues in the alternative, that:

1) the fifteen month statute of limitation of SDCL 10-47B-141 applies; or
2) the three year statute of limitation of SDCL 10-59-19 applies; or
3) either the six year statute of limitation of SDCL 15-2-13 or Senate Bill 225 applies.

[¶ 20.] Pourier argues that no “period of statutory limitation can operate as a bar to the right to abate taxes which were illegally levied and assessed. Any tax which is illegal from the beginning cannot ripen into a legal tax by mere lapse of time.” Appellant’s Brief, pp. 10, 11 (citing Att’y Gen. Op. 302 (1949-50); Att’y Gen. Op. 53, 54 (1959-60); Att’y Gen. Op. 229, 231 (1971-72)). Pourier argues in the alternative that South Dakota’s six year statute of limitation applies to recover illegal taxes paid under duress.

[¶ 21.] We should accept Pourier’s argument in part and hold that South Dakota’s six year statute of limitation applies to recover illegal and unconstitutional taxes paid under duress for the following reasons:

1) These taxes were illegally and unconstitutionally imposed.
2) SDCL 10-47B-131.2, which was enacted by the South Dakota Legislature after all three of the other statutes of limitations (i.e., the 15 month statute of limitation, the 3 year statute of limitation, and the 6 year statute of limitation), provides in part:
A consumer of motor fuel or undyed special fuel may apply for and obtain a refund of fuel taxes imposed and paid to this state, if a state or federal court of final appeals finds that taxation of the purchase or use the fuel is preempted by federal law or unconstitutional.
(emphasis supplied). SDCL 10-47B-131.2 deals specifically with unconstitutional motor fuel taxes and supersedes the more general provisions.
3) In McKesson, the United States Supreme Court held:
If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a post payment refund action in which he can challenge the tax’s legality, the Due Process Clause of the Fourteenth Amendment obligates the state to provide meaningful backward looking relief to rectify any unconstitutional deprivation.
McKesson v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 31, 110 S.Ct. 2238, 2247, 110 L.Ed.2d 17, 32 (1990) (emphasis supplied).
4) Additionally, the State argues alternatively that should neither the fifteen month nor the three year statute of limitation apply, the Court should apply the statute of limitations enacted in Senate Bill 225 shortly after this Court’s decision in Pourier. Senate Bill 225 provides:
ENTITLED, An Act to limit the amount of time in which a recovery claim for certain paid taxes may be made and to declare an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 10-59 be amended by adding thereto a NEW SECTION to read as follows:
Unless a different limitation is prescribed by this title, a claim for recovery of any tax, penalty, ot interest shall be filed with the secretary within six years of the date the tax was due or paid, whichever date is earlier.
Section 2. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.

Senate Bill 225 was approved by the Governor and signed into law on March 25, 2003, to protect the State treasury from substantial tax refunds anticipated by the Attorney General to result from our holding in Pourier I. Although the enactment does not contain express words of retroac-tivity, it appears clear that the “emergency” was Fourier I and that Senate Bill 225 was intended to apply retroactively as the stopgap.

[¶ 22.] Therefore, consistent with this opinion and a 6 year statute of limitation, we should remand to the trial court with instructions to direct the Department to:

1) Determine the correct amount of the invalid tax (refund) that applies to purchases by Muddy Creek for its use on the reservation.
2) Determine, upon proper application, the correct amount of the invalid tax (refund) that applies to gas purchases from Muddy Creek by reservation Indian consumers.
3) Determine related questions, such as prejudgment interest.

      . The dissent contends that newly enacted Senate Bill 225 is retroactive and imposes a six-year statute of limitations in this case. SDCL 2-14-21 provides that “No part of the code of laws enacted by § 2-16-13 shall be construed as retroactive unless such intention plainly appears.” Nothing in this bill indicates, much less plainly indicates, that it is intended to be retroactive.

      . Pourier v. South Dakota Dept. of Revenue, 2003 SD 21, 658 N.W.2d 395 (Pourier I).

      . SDCL 10-47B-141 provides:
      Any claim for refund of motor fuel or special fuel tax shall be received by the department within fifteen months of the date the fuel was originally purchased in order to be accepted for refund. Fuel purchased more than fifteen months from the date the claim is received is forever barred from refund eligibility.

      . SDCL 10-59-19 provides:
      A taxpayer seeking recovery of an allegedly overpaid tax, penalty or interest shall file a claim for recovery with the secretary, within three years from the date the tax, penalty or interest was paid or within three years from the date the return was due, whichever date is earlier. A claim for recovery not filed within three years of the date the tax was paid or within three years of the date the return was due, whichever date is earlier, is barred.

      .SDCL 15-2-13 provides in part:
      Except where ... a different limitation is prescribed by statute, the following civil actions ... can be commenced only within six years after the cause of action shall have accrued:
      (1) An action upon ... [an] obligation, or liability, express or implied,
      ... [.], or
      (4) An action for taking, detaining, or injuring any goods or chattels, including actions for specific recovery of personal property[.]

      . Enacted as SDCL 10-59-19.1.

      . The Attorney General’s office argued at oral arguments, and in its brief that failure to impose a statute of limitation in this case would result in the State being forced to pay out refunds dating back to 1923, the year the State began imposing motor fuel taxes. However, the holding in Pourier was limited to its facts and the earliest possible claim would date only to 1995. Furthermore, this assertion by the State is inconsistent with the State’s previous argument that it imposed motor fuel taxes on Native Americans in reliance on the Hayden-Cartwright Act, which was not enacted until 1936.
      This assertion is also inconsistent with the Attorney General’s letter to Pourier’s counsel dated June 11, 1999 which indicated that Pourier's claims were governed by the three year statute of limitation in SDCL 10-59-19.
      Moreover, the assertion is inconsistent with the Attorney General’s concession that the refund claims made by Muddy Creek for the period of December 17, 1997 through December 31, 1999 were timely filed.
      Finally, there is no evidence in the record regarding the State’s collection of motor fuel taxes aside from those collected by Muddy Creek.