author: MAKING, Justice.

text:
    2005 ND 38
    Donna K. RHODES, Plaintiff and Appellee v. Steven “Dusty” L. RHODES, Defendant and Appellant.
    No. 20040234.
    Supreme Court of North Dakota.
    Feb. 16, 2005.
    Rehearing Denied March 4, 2005.

      Sherry Mills Moore, Bismarck, N.D., for plaintiff and appellee.
    Irvin B. Nodland, PC, Bismarck, N.D., for defendant and appellant.
   MAKING, Justice.

[¶ 1] Steven Rhodes appealed from a trial court judgment dissolving his marriage with Donna Rhodes on the ground of irreconcilable differences and dividing the parties’ property under a prenuptial agreement executed by them at the time of their marriage. On appeal, Steven asserts the trial court misapplied the prenuptial agreement in distributing the property. We affirm in part, reverse in part, and remand for modification of the property distribution in accordance with this opinion.

I.

[¶ 2] Steven and Donna Rhodes were married in June 1999. They have three children born to them of this marriage, and Donna had a daughter from a prior marriage whom Steven adopted. At the time of the marriage, the parties entered a prenuptial agreement specifying the method of distributing their property in the event of a divorce. During the marriage, irreconcilable differences developed between the parties, and in March 2003, Donna brought an action for separation. Steven countered with an action for divorce. After a hearing, the court entered a judgment dissolving the marriage and dividing the parties’ property in accordance with the prenuptial agreement. Steven appealed, asserting the trial court departed from the terms of the prenuptial agreement in dividing the property and requesting this Court to redistribute the property.

II.

[¶ 3] Under the Uniform Premarital Agreement Act, the parties to a premarital agreement may contract with respect to the disposition of property upon marital dissolution. N.D.C.C. § 14-03.1-03(l)(c). A prenuptial agreement is a contract, and its interpretation is primarily a question of law for the court to decide. Matter of Estate of Zimmerman, 1998 ND 116, ¶ 13, 579 N.W.2d 591. Only if the prenuptial agreement is ambiguous or if it does not reflect a spouse’s intent because of fraud, mistake, or accident can a court employ parole evidence to clarify the terms of the contract or to find the intent of the parties. Id. Findings of fact made by the trial court in distributing marital property are reviewed on appeal under N.D.R.Civ.P. 52(a) and will not be set aside unless clearly erroneous. See Fox v. Fox, 2001 ND 88, ¶ 14, 626 N.W.2d 660. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is. some evidence to support it, on the entire evidence there is a definite and firm conviction a mistake has been made. Id.

III. Pontiac Automobile

[¶ 4] Steven argues the trial court erred in awarding a 2001 Pontiac Montana van to Donna. In his appellate brief he states:

The Pontiac should have been considered a marital asset. Even if [Steven] was not to get a credit for the pay-off he made of the loan that was against Donna’s previous car, at a minimum the Pontiac should have been considered marital property and its value divided equally between the parties.

The prenuptial agreement states, “property titled in either person’s individual name, whether acquired before or after marriage, will remain the property of the person in whose name it is so entitled and will not be considered marital property for the purposes of a divorce.” Under the agreement, Donna is listed as owning a 1996 Pontiac Grand Prix with a value of $9,200. Donna acquired the Pontiac Montana van by trading in the Grand Prix, and it is apparently titled in her name. Although the parties agree that before the marriage Steven paid off some debt on the Gi’and Prix, there is nothing in the prenuptial agreement that requires reimbursement of Steven for paying that debt. Nor does the agreement prohibit the court from awarding the 2001 Pontiac Montana van to Donna as the replacement vehicle for the Pontiac Grand Prix, which was listed as her property. In awarding this automobile to Donna, the court stated, “[t]here is no dispute about disposition of the vehicles, so Donna keeps the Pontiac Montana ... and Rhodes Electric keeps the Dodge pickup.” We conclude the court’s disposition of this particular asset did not constitute a misapplication of the parties’ prenuptial agreement.

IV. Gate City Accounts

[¶ 5] At the time of the divorce, there were three Gate City Savings & Loan accounts titled in Donna’s name. She testified that two of the accounts, each with an $11,000 balance, were intended to be set aside for the education of their son and daughter and that a third account, with a $24,000 balance, was being held for Donna’s own purposes. The total amount in these accounts was $46,000. Steven asserts that $22,000 of the funds in the accounts “came about as a result of a pass-through of losses Rhodes Electric had experienced during a particularly disastrous year.” He asserts that the $46,000 in the accounts could have been awarded to him and, in fairness, should have at least been equally divided between the parties.

[¶ 6] Under paragraph five of the prenuptial agreement, “property titled in either person’s individual name, whether acquired before or after marriage, will remain the property of the person in whose name it is so entitled and will not be considered marital property for the purposes of a divorce.” The trial court found “the money came from a tax refund from the parties’ joint filing. Steven gave the money to Donna with no restrictions. The money was hers and remains hers to do with as she pleases.” Following the specific terms of the prenuptial agreement, the trial court awarded these accounts, which were titled in Donna’s name, to Donna concluding, “[t]he terms of paragraph 5 confirm that the parties intended that any property solely in a party’s name, even if acquired after the marriage, belongs to the named party.” We conclude the trial court’s findings on this issue are not clearly erroneous and its disposition of the Gate City accounts is in accordance with the prenuptial agreement.

V. Edward Jones Account

[¶ 7] Steven objects to the court’s award to Donna of an Edward Jones retirement account in the amount of $4,840. Donna apparently concedes that the account is titled solely in Steven’s name, because she states in her appellate brief that “[Steven] had sole access” to the account. The court awarded the account to Donna stating, “Steven’s Exhibit 27 shows the account going to Donna, so the court will give the account to Donna.” However, the N.D.R.Ct. 8.3 Property and Debt Listing indicates this account is a retirement account. We conclude the court’s disposition of this asset is not in accordance with the prenuptial agreement, which provides, “[n]either party shall have any claim to any retirement account ... of the other during any divorce proceedings.” This is a retirement account titled in Steven’s name, and under the foregoing language of the prenuptial agreement, we conclude it was error for the court not to award this account to Steven. We, therefore, reverse that part of the court’s property distribution, and upon remand, direct the court to award the Edward Jones retirement account to Steven.

VI. Residential Property

[¶ 8] At the time of the marriage, the Rhodes owned a home at 100 Riverside Park Road in Bismarck. The parties built a new home on the property and moved into it in April 2000. In the prenuptial agreement, the parties valued the house at $150,000 and at the time of the divorce, the parties agreed the value was $269,000, for a total increase in value of $119,000 during the marriage. The evidence shows that the State intends to condemn this house, because it is in an area needed for construction of a new bridge across the Missouri River. There is also evidence the State might pay a relocation allowance of $40,000. The trial court made the following disposition of this property, with detailed explanation:

[The parties] moved into the new house at 100 Riverside Park Road in April of 2000. To help finance the new house, Donna sold one of her three duplexes and deposited the proceeds ($92,652) in the parties’ joint checking account at Bank Center First. The money was also used for living expenses and bills. Steven borrowed $110,000 from Rhodes Electric. Steven testified that he deposited the $110,000 in his personal/business account at Kirkwood Bank. Initially, he said that the money was used to help pay for the new house. However, when cross-examined, he said that the money “could have” been used to pay the parties’ tax bill for the 1998 tax year. Steven has repaid all but $25,000 of the loan from Rhodes Electric by on-paper shareholder distributions, in which Steven does not receive an actual distribution, but the loan balance is reduced on the Rhodes Electric’s books.
The house at 100 Riverside Park Road is slated to be demolished to make way for a new bridge over the Missouri River. The North Dakota Department of Transportation may be paying a $40,000 “relocation fee” over and above the purchase price of the property.'...
At the time the parties executed the Agreement, they agreed the property at 100 Riverside Park Road ... was valued at $150,000. Again, the parties’ agreement, not a value for tax purposes, controls. The parties agree the property is now valued at $269,000 according to the Rule 8.3 Property and Debt Listing. Therefore, the property increased in value by $119,000 during the marriage. At a minimum, each party is entitled to one-half that increase, or $59,500. However, if the Department of Transportation (or another purchaser) buys the property for more than $269,000, each party is entitled to one-half of the purchase price that is in excess of $150,000. Each party is also entitled to one-half the $40,000 relocation fee, as that is an amount that will increase the value of the property.
During the marriage, Donna sold a rental property and contributed $92,652 of the proceeds of the sale toward the house Steven built at 100 Riverside Park Road. The Agreement does not specifically address this issue. In his Supplemental Pretrial Brief and his testimony at trial, Steven acknowledged that $92,652 should be restored to Donna. Further, Steven will be keeping the property and would unjustly benefit from Donna’s contribution if she were not compensated. Therefore, the $92,652 will be restored to Donna.

[¶ 9] With regard to disposition of the real property, the prenuptial agreement provides in relevant part:

As to any real property held solely in Steven’s individual name at the time of the contemplated marriage, the value of the same as reflected in Exhibit “A” shall be that portion which shall not be considered marital property for the purposes of a divorce or the election of an augmented estate in a probate proceeding, with any increase in the value to be considered marital property for all purposes. This provision shall be binding upon the parties, notwithstanding titling the property in both names, provided that any joint tenancy property shall become solely the joint tenant’s in 'the event of death of the other.

[¶ 10] Steven objects to the court awarding Donna an equal share of any money the parties may receive for this property in excess of the $269,000 valuation the parties have placed on the property at the time of the divorce. Steven also objects to the court awarding Donna an equal share of any relocation award which might be received from the State upon condemnation of the property. The prenuptial agreement provides that “any increase in the value” of real property should be considered “marital property for all purposes.” We conclude the court did not err in awarding the parties an equal amount of the increased value of the property including an equal split of any money received for the property in excess of its $269,000 current value, and including an equal share of the relocation award for condemnation of the property.

[¶ 11] The court found that Donna had invested $92,652 for the residential property by the sale of her duplex and that she should be reimbursed for that. Steven does not object to the court recognizing Donna’s personal investment toward the home and reimbursing her for that investment, but he claims “it was error for the Court to return the full amount of that investment to Donna off the top of the appreciation with no similar credit or consideration being given to [Steven] for the investment he had made out of his non-marital assets.”

[¶ 12] We conclude it was not error for the court to refuse to reimburse Steven for the $25,200 of outstanding loans that Steven asserts may have been used for the residential property. By his own testimony, Steven concedes that the $25,200 may have been used for unrelated purposes such as paying for taxes. Consequently, we conclude it was not clearly erroneous for the trial court to find that Steven should not be reimbursed from the residential property for the $25,200 outstanding loan.

[¶ 13] However, we do agree with Steven that the trial court erred in the method it used in reimbursing Donna for the $92,652 she invested from the sale of her duplex for construction of the new residential property. The court equally split between the parties the $119,000 increase in value of the residential property, giving each $59,500. In addition to Donna’s $59,500 share, the court also awarded her $92,652 as reimbursement for her contribution to construction of the property. In essence, the trial court awarded Donna a “double dip” for her contribution to the residential property by allowing her to have an equal share of the increased value, which included her investment in the construction of the property, and then also awarding her full reimbursement of the $92,652.

[¶ 14] The trial court found that Donna sold a rental property and contributed $92,652 of the proceeds of the sale toward the house Steven built at 100 Riverside Park Road. The record supports the trial court’s finding. The prenuptial agreement provides that any real property held solely in Donna’s name would not be considered marital property for the purposes of a divorce, but would be subject to a note and mortgage should Steven reduce or satisfy an existing mortgage. The premarital agreement also provides that real property held solely in Steven’s name at the time of the marriage shall not be considered marital property except that “any increase in the value” is “to be considered marital property for all purposes.” The first “WHEREAS clause” of the agreement states the parties intend by the agreement to avoid acquiring interests in the property of the other party as “incidents of their marriage relationship.”

[¶ 15] We construe contracts as a whole to give effect to each provision to determine the parties’ intent. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 9, 610 N.W.2d 53. Reading the foregoing clauses of the agreement together, the unambiguous intent is to reserve to each party his or her own property and to divide as marital property thereafter the increase in value of the real property. To carry out the intent of the prenuptial agreement, it is appropriate for the court to reimburse Donna for her contribution to the new construction from the proceeds of the sale of her duplex, because those monies are fairly traceable to the residential home. But the reimbursement must, therefore, come from the proceeds of the new home and not other. marital assets.

[¶ 16] We conclude the court, by awarding Donna an equal share of the new home’s increased value and also a full reimbursement of the duplex proceeds used for the new home construction, misapplied the contract and failed to carry out the intent of the parties that each retain his and her own property brought into the marriage. To carry out that intent, the court must reimburse Donna’s $92,652 contribution to the new home construction from the increased value of the new home.

[¶ 17] We therefore conclude the prenuptial agreement requires the court to reimburse Donna the $92,652 from the $119,000 increase in the value of the property and then to divide the remainder of the increased value between the parties. Consequently, from the $119,000 increase in the value of the property, the court should reimburse Donna the $92,652 leaving a remaining balance of $26,348, which the court should then split equally between the parties, giving each a $13,174 share. With this modification of the distribution of the residential property, we affirm the trial court’s disposition of it. We affirm the court’s award of an equal share of any excess the parties receive above the $269,000 value the parties placed on the property and an equal share of the relocation expenses.

VII.

[¶ 18] In accordance with this opinion, we affirm the trial court’s judgment in part and reverse in part. We affirm the court’s distribution of the Pontiac van and the Gate City accounts to Donna. However, we reverse the court’s distribution to her of the Edward Jones account and remand with directions that account be awarded to Steven. We also partially reverse the trial court’s disposition of the residential property and remand with directions the trial court reimburse Donna $92,652 from the $119,000 increase in the value of that property and then split equally between the parties the balance of the increased value. We affirm the court’s equal division of any amounts received for the residential property in excess of $269,000 and of any relocation award received for condemnation of the property.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2005 SD 6
    Donna M. LUKE, As Personal Representative of The Estate of Michael Luke, Plaintiff and Appellant, v. Jon DEAL, Defendant and Appellee.
    Nos. 23169, 23184.
    Supreme Court of South Dakota.
    Argued Nov. 15, 2004.
    Decided Jan. 12, 2005.

      George F. Johnson, Wally Eklund, Johnson Eklund Law Office, Gregory, South Dakota, Attorneys for plaintiff and appellant.
    Mark D. O’Leary, O’Leary Law Office, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] While moving snow with a Caterpillar loader at a ranch owned by Jon Deal (“Deal”), Michael Luke (“Michael”) struck and punctured a propane tank which resulted in a large explosion. Michael died as a result of the injuries he sustained. Donna Luke, Michael’s wife, as the personal representative of Michael’s estate (the “estate”) sued Deal for wrongful death. The jury found Deal to be negligent. However, the jury also found Michael to be contributorily negligent and that his contributory negligence was more than slight. The estate claims in issue 1 that the trial court erred in failing to instruct the jury that a landowner owes a duty to an invitee to warn of known, concealed dangers. On notice of review, Deal claims in issue 3 that there was insufficient evidence to submit the issue of his negligence to the jury. We reverse issue 1 and affirm issue 3, notice of review.

Facts

[¶ 2.] On January 30, 2001, after a heavy snowstorm, Deal’s ranch was snowed in to the point where Deal could not feed his cattle. He therefore called Luke Construction to inquire as to whether they could assist him with the snow removal. Deal spoke with Jim Luke (Michael’s brother) and was informed that they would be available within the next day or two. Early the following morning, Michael called to inform Deal that he was on his way out to the ranch. He ax-rived at approximately 8:00 A.M. driving a Caterpillar front-end loader. Jennifer Luke, Michael’s daughter who was 18 years-old at the time, followed behind in a pickup truck.

[¶ 3.] Before beginning, Michael got out of his loader to talk with Deal. They discussed the areas of the ranch that needed to be cleared and started with the hay yard which was west of the Deal home. Deal used one of his tractors to assist in the snow removal operation. At various times while working in the hay yard Michael and Deal stopped to discuss their progress, at which times Deal also warned Michael of various objects to watch out for including a liquid feed line.

[¶ 4.] By early afternoon, they completed their work in the hay yard and moved the snow removal operation to the driveway that leads to Deal’s ranch house and the other buildings. Before they began, the two men again discussed how they were going to proceed and then cleared the driveway. Afterwards, they again stopped to talk, this time in front of the red barn. Deal instructed Michael to clear the yard on the south side of the house and then to clear the area directly in front of the red barn. Deal also warned him of a tractor tire and rim that was buried underneath the snow in front of the barn.

[¶ 5.] While Michael worked to clear the yard by the house as the two had discussed, Deal was sitting on his tractor with his back to him talking on his cell phone. As Michael was clearing the snow on the west side of the house, the blade of the loader struck and punctured the end of a 1,000-gallon propane tank that had been filled about a month earlier and was completely buried under the snow. The propane gas ignited which resulted in a large explosion.

[¶ 6.] Just before the explosion occurred, Deal was getting out of his tractor. Moments later, Michael emerged from the large fire ball. Both Jennifer and Deal rushed to his aid. Michael asked Deal why he did not tell him the propane tank was there, to which Deal did not respond and bowed his head.

[¶ 7.] Approximately 50%-70% of Michael’s body was severely burned. He died five days later from the injuries. Deal also sustained burn injuries but to a much lesser extent.

[¶ 8.] The estate sued Deal and Farmer’s Co-op Oil Company (“Farmer’s Coop”) for wrongful death. Deal sued Luke Construction and Farmer’s Co-op for his injuries. Deal’s third party claims were settled before trial.

[¶ 9.] The trial court separated the estate’s liability and damage claim for trial. During jury deliberations, the estate settled with Farmer’s Co-op leaving Deal as the only defendant. The jury found Farmer’s Co-op not negligent and Deal negligent. However, they also found Michael to be contributorily negligent, more than slight.

[¶ 10.] The Luke estate filed a motion requesting a new trial, which was denied. The estate appeals, raising two issues:

1. Whether the trial court erred in failing to instruct the jury regarding the landowner’s duty to warn an invitee of known, concealed dangers.
2. Whether the trial court erred in denying the estate’s motion for a new trial.

On notice of review, Deal appeals:

3. Whether there was sufficient evidence for the trial court to submit the issue of Deal’s negligence to the jury.

Standard of Review

[¶ 11.] We review a trial court’s refusal of a proposed instruction under an abuse of discretion standard. The trial court has broad discretion in instructing the jury. Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. State v. Martin, 2004 SD 82, ¶ 21, 683 N.W.2d 399, 406 (citing State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394). The party asserting that an instruction was given in error must show that the instruction was both erroneous and prejudicial. First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citing State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567). “An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.” Id. (citing Carpenter v. City of Belle Fourche, 2000 SD 55, 609 N.W.2d 751).

[¶ 12.] “A claim that the evidence was insufficient to establish contributory negligence is viewed ‘in the light most favorable to upholding the verdict.’ ” Johnson v. Armfield, 2003 SD 134, ¶7, 672 N.W.2d 478, 481 (citing Parker v. Casa Del Rey, 2002 SD 29, ¶5, 641 N.W.2d 112, 115).

[¶ 13.] 1. Whether the trial court erred in failing to instruct the jury regarding the landowner’s duty to warn an invitee of known, concealed dangers.

[¶ 14.] During the settlement of instructions, the estate offered proposed instructions regarding a landowner’s duty to warn invitees of known, concealed dangers. However, those proposed instructions were denied and instead the trial court used the following instructions regarding this particular issue:

Instruction # 12
Negligence is the failure to use reasonable care. It is the doing of something which a reasonable person would not do, under facts similar to those shown by the evidence. This requires care commensurate with the danger involved, under all the facts and circumstances shown by the evidence. The law does not say how a reasonable person would act under facts similar to those shown by the evidence. That is for you to decide.
Instruction # 20
The possessor of land owes an invitee the duty of exercising reasonable or ordinary care for the invitee’s safety. Michael Luke was an invitee of Jon Deal.

The estate claims that the trial court erred in failing to give the jury a full and correct statement of the law on the duties owed by landowners and that this ultimately prejudiced the estate. We agree.

[¶ 15.] This area of law is well-settled. A landowner owes a business visitor or invitee the duty of using ordinary or reasonable care for the benefit of the invitee’s safety. Luther v. City of Winner, 2004 SD 1, ¶ 19, 674 N.W.2d 339, 347 (citing Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986)); Restatement (Second) of Torts § 343 (1965). This duty requires the landowner to keep the property reasonably safe. Luther, 2004 SD 1, ¶ 19, 674 N.W.2d at 347; Restatement (Second) of Torts § 343, comment b. “This general duty includes the duties owed to licensees: to warn of concealed, dangerous conditions known to the landowner....” Luther, 2004 SD 1, ¶ 19, 674 N.W.2d at 347 (quoting Mitchell, 396 N.W.2d at 313) (emphasis in the original).

[¶ 16.] Michael was an invitee, as he was hired by Deal to perform snow removal on Deal’s ranch. As the landowner, Deal had a duty to use reasonable care in ensuring Michael’s safety. The Restatement (Second) Torts provides:

an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation.

Restatement (Second) Torts § 343, comment b. Furthermore,

[a]n invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give learning of the actual condition and the risk involved therein.

Restatement (Second) Torts § 343, comment d (emphasis added).

[¶ 17.] Here, Deal had a duty to warn Michael of any known, concealed dangers. Luther, 2004 SD 1, ¶ 19, 674 N.W.2d at 347. Deal had reason to know that the propane tank could be dangerous or deadly if punctured. The evidence establishes that Deal knew exactly where the propane tank was located in the farm yard and that it was completely covered by snow at the time of the accident. Therefore, when Deal instructed Michael to “clean out the yard,” he had a duty to warn him of the buried propane tank and any other known, concealed dangers located in the farm yard. Although Deal partially fulfilled this duty by warning Michael about the tractor tire and rim buried underneath the snow in front of the barn, he failed to warn him about the, buried propane tank near the house.

[¶ 18.] Deal asserts that there should be some geographical limitation based on foreseeability that limits the landowner’s duty to warn of known, concealed dangers. We agree to the extent that it is a jury question. In other words, the landowner may not have a duty to warn invitees of known, concealed dangers that are not in the area where the invitee is going to work. Deal contends that he had no reason to believe that Michael was going to be working in the area of the farm yard where the propane tank was located and therefore had no duty to warn him of that known, concealed danger. "Whether he knew or should have known that Michael was going to be working in ^the area of the farm yard where the propane tank was located, is a question for the jury under proper instruction.

[¶ 19.] ‘Whether a common-law duty exists depends on the foreseeability of injury.” Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 16, 545 N.W.2d 823, 826. Here, Deal instructed Michael to clear snow in the farm yard and the buried propane tank was located within the farm yard Specifically, the evidence shows that Deal intended for Michael to clear the area of the farm yard that is on the south side of the house. As the propane tank was located on the west side of the house near the structure’s southwest corner, the jury could reasonably conclude that the propane tank was in the area where Michael was going to work. This being the case, the risk of injury from inadvertently striking the buried propane tank may be reasonably foreseeable and Deal would have a specific duty to warn Michael of its location.

[¶20.] Deal “nicked” the cap of the propane tank with his tractor approximately one month prior to the accident while he was clearing snow so that it could be filled. In addition, he knew that the propane tank was again completely covered by snow on the date of the incident and said nothing after the explosion when Michael asked him why he had not told him about the covered propane tank.

[¶21.] The law is clear that a landowner owes a duty to warn his invitees of known, concealed dangers. Luther, 2004 SD 1, ¶ 19, 674 N.W.2d at 347. The failure to properly instruct on the duties owed can mislead and confuse the jury. Any instruction that is misleading, conflicting, or confusing creates reversible error. Johnson, 2003 SD 134, ¶ 8, 672 N.W.2d at 481; Thomas v. Sully County, 2001 SD 73 ¶ 4, 629 N.W.2d 590, 591; Veeder v. Kennedy, 1999 SD 23, ¶ 32, 589 N.W.2d 610, 618. By limiting the jury to instructions twelve and twenty, which only generally describe this particular area of law, the trial court failed to adequately instruct the jury on the duty a landowner owes to an invitee of known, concealed dangers. The inadequate instructions prejudiced the estate in that it misled the jury as to the duty that Deal owed to Michael, which in turn likely had some effect on the jury’s verdict.

[¶ 22.] Based on the above, the trial court erred in instructing the jury. Therefore, we reverse and remand for a new trial so that the jury can be properly instructed as to the duty a landowner owes to his invitees concerning known, concealed dangers.

[¶ 23.] 2. Whether the trial court erred in denying the estate’s motion for a new trial.

[¶ 24.] We do not reach this issue because of our decision on issue 1.

[¶25.] 3. Whether there was sufficient evidence for the trial court to submit the issue of Deal’s negligence to the jury.

[¶ 26.] On notice of review, Deal asserts that the evidence is legally insufficient to support a finding of negligence on his part. However, the evidence indicates that Deal knew exactly where the propane tank was located, that he knew the propane tank was completely covered by snow on the date of the incident, that Deal knew or should have known that the propane tank could be dangerous or deadly if punctured, and that he may have been inattentive to the snow removal operation when Michael began to clear snow in the farm yard south of the house. In fact, as indicated, Deal himself nicked the propane tank approximately a month earlier even though he knew where it was located. Furthermore, when asked by Michael after the explosion why he had not told him that the propane tank was there, Deal said nothing and bowed his head.

[¶27.] Deal had a duty to warn Michael of any known, concealed dangers located in the farm yard when he instructed him to “clean out the yard.” Yet, he failed to do so. At the very least, these are genuine issues of material fact, upon which reasonable minds might differ and present jury questions. State, Dept. of Revenue v. Tkiewes, 448 N.W.2d 1, 2 (S.D.1989).

[¶ 28.] There was sufficient evidence for the trial court to submit the issue of Deal’s negligence to the jury. On retrial on proper instructions, it will be for the jury to decide whether the contributory negligence of Michael, if any, was more than slight barring his recovery.

[¶ 29.] We reverse and remand issue 1 for a new trial and affirm issue 3, the notice of review.

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

      . Deal testified as follows:
      Q: And, what did you tell Mike at that time?
      A: Well, I told him that I wanted him to clean out the yard, push it up there on the north side of the house, like what we were doing, and that there was a big snow bank in front of the barn that I wanted him to shave some of that off, and told him about a tractor tire and a rim that were in front of the barn that was buried underneath the snow.

      Q: Okay. Anything else that was said during that conversation?
      A: I told him to keep me on the list because the way the snow was, why, he was probably going to have to come back, and that I wanted him to continue cleaning out the yard the way it was. And he said, well I seen your dad do this or a lot of times we just push snow to the south against the three buildings, I'm going to take a bunch of short, quick pushes and get out of here.

      . Jennifer Luke testified as follows:
      Q: Did there come a time when [your father] directed a statement or question towards Jon Deal?
      A: Yes. He — after he got up, he looked right at him and said, why didn't you tell me that was there? Why didn’t you tell me? He was real stem about it.
      Q: And, what did Jon Deal do?
      A: He didn't do anything, he just shook his head.
      Q: How did'he react?
      A: He was sitting on a snow pile, he just kind of bowed his head.

      , Plaintiff's proposed instructions #36 and # 44 are as follows:

        Instmction #36

      Reasonable and ordinary care requires the defendants Farmer's Co-op Oil Co., Jon Deal and CENEX to keep premises from which propane fuel is stored for use safe and warn any invitee, like Michael Luke, of any concealed, dangerous conditions known to them or that they should anticipate. The duty to warn is a subpart of the duty to keep the property reasonably safe. The duty to keep the property reasonably safe is, in turn, a subpart of the general duty to exercise reasonable care.

        Instruction # 44

      As a landowner, the duty of Jon Deal is to warn people invited on his premises of concealed, dangerous conditions which Jon Deal knew of, or in the exercise of reasonable care, should have known of.

      . The Restatement (Second) Torts § 332 defines an "invitee” as:
      (1) An invitee is either a public invitee or a business visitor.

      (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.

      . During oral arguments, Deal's attorney conceded that the buried propane tank was within the boundaries of the farm yard.


author: KONENKAMP, Justice. GILBERTSON, Chief Justice ZINTER, Justice

text:
    2005 SD 8
    STATE of South Dakota, Plaintiff and Appellee, v. John Thomas LASSITER, Defendant and Appellant.
    No. 22854.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided Jan. 12, 2005.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Robert T. O’Keefe of Tinan, Smith & Bucher, Mitchell, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we confront the problem of when prior act evidence may be used to show modus operandi or motive in order to prove identity. A man entered the home of Scott Davis and assaulted him. At the time, Davis had a relationship with Brenda Tobin. Defendant, John Las-siter, Tobin’s former boyfriend, was charged with the assault. At trial, defendant denied involvement in the incident and offered an alibi. To prove that defendant was the assailant, the State sought to offer evidence surrounding defendant’s prior conviction for aggravated assault of another former girlfriend. Defendant moved to suppress this evidence, but the trial court ruled that the circumstances of the prior offense were admissible because they tended to prove the assailant’s identity. Defendant was convicted of aggravated assault and first degree burglary. He appeals, and we reverse because the circumstances of the prior assault were inadmissible to prove identity.

Background

[¶ 2.] On October 2, 2002, Scott Davis was staying at the apartment of his girlfriend, Brenda Tobin, in Ethan, South Dakota. After driving Tobin to work in Mitchell, Davis returned to his rural home near Mt. Vernon, South Dakota. He arrived at 6:30 a.m. Twenty minutes later, he began to leave his home to head for work at a nearby farm.

[¶ 3.] As he was leaving his house, Davis noted something peculiar. He turned to investigate and saw a man standing near the door. Davis asked the man why he was on his property. The man struck him on the head with a rock. Then the assailant pushed him back into the house, saying, “I can’t let you leave here today.” Davis responded, “What do you mean, I can’t leave here today? Are you going to kill me?” The assailant smiled. Davis interpreted the response to mean that the assailant intended to Mil him.

[¶ 4.] Rock in hand, the assailant told Davis that Tobin would eventually cheat on Davis. Not willing to risk fleeing, Davis remained in his home with the assailant for the next hour. Eventually, Davis told the assailant that if he did not arrive at work soon, his employer would come looMng for him. This revelation appeared to alarm the assailant who responded that he would leave. Davis and the assailant exited the home. As Davis was driving away, he noticed a light blue vehicle parked along the road near his residence. He wrote down the vehicle’s license plate number. He then drove to work where he contacted the sheriffs department and sought medical attention.

[¶ 5.] Defendant was Tobin’s former boyfriend. The two had lived together for a short time. After they separated, problems arose between them over a vehicle that Tobin had purchased and defendant had made payments on. In the midst of this dispute, in October 2002, Tobin had the vehicle towed from the parMng lot where defendant worked. Because he no longer had a car, defendant borrowed a light blue vehicle from one of his friends.

[¶ 6.] In making his report to a deputy sheriff, Davis named defendant as his assailant. He also described the car and gave the officer the license plate number. Later, the deputy saw defendant driving the car. Upon stopping it, the deputy placed defendant under arrest.

[¶ 7.] Defendant told the deputy that he was returning from Tyndall, South Dakota. He said that he had taken the day off from work to buy a new car. He denied that he had been present at Davis’s home, and he gave the deputy a timeline of his activities during the day leading up to his arrest.

[¶ 8.] Defendant was charged with the offenses of aggravated assault, Mdnapping, and first degree burglary. In a December 2002 trial, defendant was acquitted of Md-napping, but the jury was unable to reach a decision on the remaining counts.

[¶ 9.] In the second trial, the State called as its last witness Lori Beckmann, defendant’s former girlfriend. The sole purpose for her testimony was to introduce the facts of defendant’s prior aggravated assault conviction. Defendant had earlier moved to suppress this testimony. However, the trial court overruled the motion, concluding that

the offered evidence shows conduct that is substantially similar to that charged, and is highly probative on the issue of intent, and particularly the specific intent to commit the alleged crimes that the State must show, the issue of motive, as both the prior act and the current charge involve similar actions involving a relationship with a girlfriend, and identity.

[¶ 10.] Before Beckmann’s testimony, the trial court read the following jury instruction:

Ladies and gentlemen, the State is going to call Lori Beckmann and the subject of her testimony is going to concern pri- or — what we call prior acts evidence. She is expected to be providing testimony concerning certain incidences that happened between her and the Defendant at another time and another county. And the attorneys let the court know when this type of evidence is proposed to be introduced so that I can determine whether I would allow it or not. And the purpose of allowing this evidence is for your consideration as to whether it tends to show that the Defendant, Mr. Lassiter, intended to commit the offense for which he is now charged. This evidence is allowed to show motive, intent, or identity of the person charged, but you must not consider this evidence as tending to show in any other respect Mr. Lassiter’s guilt with respect to the offense with which he is charged.

[¶ 11.] Beckmann testified that she lived with defendant “on and off for about three or four years.” Eventually, she attempted to end the relationship. On August 28, 2000, shortly after her attempt, defendant held her in her vehicle against her will, assaulted her, and threatened to kill her, stating, “he could kill [her] at any time.” Defendant eventually let her go home after she promised to meet him the following day. She headed to work the next morning armed with a small caliber pistol. As she drove into town, she noticed that defendant was following her. She testified that on numerous occasions she had seen defendant with a pistol. Fearing that he would harm her if she stopped, she raced to the police station. Once there, she locked herself in a bathroom until police officers convinced her to come out. When she did, she told the officers of what had happened that day and the previous day. Defendant was later convicted of aggravated assault on Beckmann.

[¶ 12.] At the conclusion of the trial here, the jury convicted defendant of aggravated assault and first degree burglary. For the aggravated assault, he was sentenced to twenty-five years in the penitentiary, and for first degree burglary, seventy years, with thirty years suspended. On appeal, defendant asserts the following issues: (1) “Was the evidence insufficient to support the jury verdict and therefore did the trial court err in denying defendant’s motion for judgment of acquittal?” (2) “Did the trial court err in denying defendant’s motion to exclude prior bad acts evidence against defendant and allowing the introduction of said evidence by the State?” (3) “Did the trial court err in sentencing the defendant in a manner disproportionate to defendant under the totality of the circumstances in this case?”

Analysis and Decision

[¶ 13.] On evidentiary questions, our review is limited to whether the trial court abused its discretion. State v. Red Star, 2001 SD 54, ¶ 10, 625 N.W.2d 573, 576 (citations omitted). Evidence of other acts offered for the sole purpose of establishing a propensity to commit a crime is irrelevant, and therefore, inadmissible. State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 799. To obtain a new trial, a defendant must prove not only that the trial court abused its discretion in admitting the evidence, but also that the admission resulted in prejudice. Red Star, 2001 SD 54, ¶ 10, 625 N.W.2d at 577 (citing SDCL 15-6-61). Erroneous admission of evidence requires reversal except where we conclude that the error was harmless. State v. Owens, 2002 SD 42, ¶ 85, 643 N.W.2d 735, 756 (citation omitted).

[¶ 14.] The State argued to the trial court and now to this Court that the facts surrounding defendant’s prior conviction of aggravated assault were relevant to prove defendant’s identity and motive. Because defendant denied that he assaulted Davis, the State contends that the facts supporting defendant’s previous aggravated assault conviction were admissible.

[¶ 15.] In accord with SDCL 19-12-5 (Rule 404(b)), the admissibility of other acts evidence depends on a two-step analysis: (1) whether the evidence is relevant to an issue other than character, and (2) whether “the probative value of the evidence is substantially outweighed by its prejudicial effect....” State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995); see SDCL 19-12-3 (Rule 403). We focus here on the first prong of this test. Under SDCL 19-12-5 (Rule 404(b)), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” If, however, the evidence is offered for any purpose other than to prove a person’s character or propensity to commit an act, it is admissible. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d at 798 (citations omitted). In determining whether to admit the evidence of other acts, a trial court must decide whether the proffered evidence is relevant to some material fact. State v. Dace, 333 N.W.2d 812, 816 (S.D.1983). It is the proponent of the prior act evidence who must persuade the trial court that the evidence has some permissible purpose. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 798 (citing SDCL 19-12-1 (Rule 401)). Upon a trial court’s determination that the proffered evidence is relevant, “the balance tips emphatically in favor of admission unless the dangers set out in Rule 403 ‘substantially’ outweigh probative value.” Id. at 799 (citations omitted).

[¶ 16.] Under the State’s first theory of admissibility, it reasons that evidence of defendant’s prior aggravated assault is admissible because it tends to identify defendant as the perpetrator. Evidence of prior acts similar in nature to the charged offense may be admitted where a defendant’s identity is in issue. SDCL 19-12-5 (Rule 404(b)). Generally, evidence of prior acts is permitted when they demonstrate a particular “modus operandi.” See 1 Ed-WARD J. ImWINKELRIED, UNCHARGED MISCONDUCT Evidence § 3:10, at 49 (Rev. ed. 1999 & Supp. 2004) (citation omitted). Although in Wright we clarified SDCL 19-12-5 (Rule 404(b)), we have never strayed from the requirement that in cases where prior acts are offered to prove identity, the acts must be unusual or distinctive. 1999 SD 50, ¶ 18, 593 N.W.2d at 800 (citations omitted); see also, e.g., State v. Johnson, 316 N.W.2d 652, 655 (S.D.1982) (three burglaries within relatively short time span; same method used to commit offenses; same type of property taken in each burglary). These acts need not be identical, but they must be of such close similarity that an inference can be drawn that the same person committed the acts. McCormick On Evidence § 190, at 449 (Edward W. Cleary ed., 2nd ed. 1972). Indeed, “much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts.” Id.

[¶ 17.] In support of its theory, the State contends that because both the charged and uncharged offenses were the same type of crime, aggravated assault, evidence of defendant’s prior conviction should be permitted. The State suggests that our decision in Chamley stands for this proposition. State v. Chamley, 1997 SD 107, 568 N.W.2d 607. It does not. In Chamley, this Court held that the trial court abused its discretion in concluding that the probative value of a prior act outweighed the potential for prejudice. 1997 SD 107, ¶ 12, 568 N.W.2d at 612. In so holding, this Court did not lay down a rule allowing evidence of a prior conviction based on the mere fact that a defendant was once again charged under the same statute. Instead, the Chamley Court reasoned that the probative value of a prior act was slight where the uncharged and charged crimes did not fall under the same statute. Therefore, the Court ruled that the trial court abused its discretion in finding that the slight probative value of the evidence outweighed the prejudice it created. Id. ¶ 16.

[¶ 18.] The State also attempts to support its theory by pointing to other similarities between the attacks on Beck-mann and Davis, including the fact that testimony was given in both cases that defendant had previously followed both of them, had threatened to kill both, and had subsequently let both go. Where a court allows a prior act to be admitted to prove identity, it generally will look for common features that make it highly probable that the unknown offender and the accused are the same person. See Wright, 1999 SD 50, ¶ 18, 593 N.W.2d at 800 (“unusual or distinctive”); McCoRmick, supra § 190, at 449 (“so nearly identical in method as to earmark them as the handiwork of the accused”). See also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003); Bussell v. State, 113 S.W.3d 530, 541 (Tex.Ct.App., 2003) (“ ‘[T]o be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant’s handiwork.’” (citation omitted)); State v. Shippee, 839 A.2d 566, 572 (Vt.2003) (Skoglund, J., concurring); State v. DeVincentis, 150 Wash.2d 11, 74 P.3d 119, 125 (2003) (“[Wjhen identity is at issue, the degree of similarity must be at the highest level and the commonalities must be unique[.]”). Alone, the facts presented by the State are certainly not unique, and while the pattern of both crimes demonstrates some similarities, we cannot say that a fact finder could properly use those similarities to conclude that both crimes were committed by one individual.

[¶ 19.] Proof by “modus operan-di” is only one method by which prior misconduct can prove identity. Identity can be proved indirectly by proof of motive. “In the motive cases, unlike the mo-dus cases, the courts do not insist that the motive be truly unique to the defendant.” 1 ImwinkelRied, supra § 3:15, at 79. Under the State’s second theory of admissibility, it argues that evidence of defendant’s prior conviction is admissible because it tends to identify defendant by showing that the same circumstances motivated both crimes. Specifically, the State argues that “the central connection between the two attacks is the identical motive resulting in the identical criminal charge[.]”

[¶ 20.] Generally, there are three basic elements in a criminal prosecution: (1) proof of the commission of an act; (2) by a person with the necessary mens rea; and (3) accomplished by the defendant. Id. § 4:01, at 2. Evidence demonstrating motive may be relevant when used to prove that the act was committed, to prove that the actor had the requisite mens rea, or to identify the defendant as the perpetrator of the act. Under the “motive” theory, the State argues that evidence surrounding defendant’s prior aggravated assault conviction tends to identify him as the person who committed the crimes here.

[¶ 21.] Evidence of a prior crime may demonstrate a defendant’s motive to commit a crime in one of two ways. Id. § 3:15, at 79. First, the prior act Gan supply the motive for the charged act. Id. For instance, in People v. Daniels, 52 Cal.3d 815, 277 Cal.Rptr. 122, 802 P.2d 906, 925 (1991), the prosecutor was allowed to prove a defendant’s motive (and thus identify him) by showing a direct relationship between the earlier robbery where the defendant was rendered a paraplegic by a police officer and the murder of police officers in retribution. See also United States v. Jones, 559 F.2d 960, 962 (5th Cir.1977) (revenge motive for attacks on official’s home and business who issued arrest warrant used to identify defendants). Here, however, there was no relationship between the two offenses or the two victims. The girlfriend in the first incident had no connection to the girlfriend (or her new boyfriend) in the second incident. The State does not even argue that any causal connection existed between the Davis and Beckmann assaults. Thus, the first category for admitting a prior act to prove motive does not apply here.

[¶ 22.] “In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive.” 1 ImwinkelRied, supra § 3:18, at 103. This approach is typically followed where “the motive is in the nature of hostility, antipathy, hatred, or jealousy.” Id. But as Imwinkelried warns, “[t]here must be some relationship between all the victims. Otherwise, the evidence would show only the defendant’s general violent nature .... ” Id. Here, again, there was no nexus between the two victims. Those jurisdictions allowing this theory generally limit its application to circumstances where there is some type of relationship between the victims. See, e.g., United States v. LeBaron, 156 F.3d 621, 625-26 (5th Cir.1998) (evidence of prior murders admitted where other victims were former members of the same church); Kimble v. State, 659 N.E.2d 182, 184-85 (Ind.Ct.App.1995) (evidence of defendant’s membership in racially biased group was relevant to show that defendant was motivated to choose victim based on her race); Lazcano v. State, 836 S.W.2d 654, 660 (Tex.Ct.App.1992) (“[A]s to motive, such evidence usually is required to relate ... to other acts by the accused against the victim of the crime for which the accused is presently being prosecuted.... It has, however, been previously held that extraneous offenses are admissible to illustrate an accused’s ill will toward all persons within a certain class of people.”). See also United States v. Bowman, 720 F.2d 1103, 1105 (9thCir.1983) (prior assault on relative of wife — sufficient factual relationship or nexus between two victims to render the prior conviction relevant to the issue of defendants motive for assault on wife).

[¶ 23.] The State contends that the pri- or offense and the present offense, while not related, have the same or similar motives: being “jilted” was defendant’s motive behind the attacks on Beckmann and Davis. Reasoning that defendant was “angry at his first girlfriend and his second girlfriend,” the State suggests that defendant’s anger at Tobin, his second girlfriend, was transferred to Davis, Tobin’s new boyfriend. With respect to the second girlfriend (Tobin), there was evidence based on the assailant’s remarks to Davis that the assailant resented being rejected by Tobin. That established a motive for the assault on Davis. Certainly, defendant’s breakup with Tobin supplied evidence of a possible motive for defendant to assault her new boyfriend. That evidence was clearly admissible. But the prior assault on defendant’s former girlfriend was inadmissible because any connection between the two assaults was simply too remote. Allowing evidence about the prior assault on Beckmann only tended to prove that because defendant had done it before, he must have done it again.

[¶ 24.] This is the kind of propensity evidence SDCL 19-12-5 (Rule 404(b)) was designed to preclude: evidence of other crimes cannot be used to prove conduct through an inference about the defendant’s character, i.e., a general propensity to commit assaults when rejected by girlfriends. Indeed, this is what legal commentators warn against: “But where the motive evidence is offered to prove that the act was committed or that the defendant was the perpetrator, the only justification for admitting the evidence under Rule 404(b) is that it is not evidence of character; in this situation courts must be on guard to prevent the motive label from being used to smuggle forbidden evidence of propensity to the jury.” 22 Chaeles Alan Weight & Kenneth W. GRAHAM, JR., Federal Practice And Procedure § 5240, at 480 (1978) (emphasis added). See also State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697, 699-700 (1982) (rape of another woman five years earlier had no logical tendency to provide a motive for the charged rape except upon the forbidden inference of a propensity to commit rape).

[¶25.] Although the State offers no case law approving this type of prior act evidence, one of the dissenters cites as authority the case of Johnson v. State, 936 P.2d 458 (Wyo.1997). There, citing Im-winkelried, the Wyoming Supreme Court ruled that evidence of prior assaults on an ex-girlfriend were admissible in the defendant’s trial for aggravated assault of his current girlfriend to prove, among other things, identity and motive. Id. at 463-64. Like here, there was no relationship between the two victims. On that point, however, the resemblance to our case ends. The facts in Johnson are so different as to be of no use here. The Johnson court’s final comments suffice to illustrate a conspicuous distinction. The court found “substantial similarities between the two assaults” and concluded, “Although the two assaults were not identical, their commonalities created a powerful inference that Appellant had committed both assaults.” Id. at 465. No such “commonalities” existed here.

[¶ 26.] Finally, the State argues, in the alternative, that if “the prior bad acts evidence has no probative value” any error that may have occurred by its admission was harmless. This argument fails to recognize that evidence lacking probative value may still be prejudicial. ' In addition to allowing Beckmann to tell the jury of her assault, the court also allowed her to testify about inflammatory matters that had no bearing on the present offense. She testified that defendant carried a gun. She told the jury that because of her fear of defendant, she was compelled to arm herself with a like weapon. Yet there was no gun involved in this case. Considering these inflammatory matters, we conclude that the error in admitting this evidence was prejudicial. The court’s instruction to the jury on prior acts only validated for the jurors the propriety of considering these irrelevant and prejudicial facts. See State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (recognizing where jury instructions “mislead, conflict, or confuse then reversible error results”).

[¶ 27.] In summary, the evidence of defendant’s prior assault conviction was not so similar to the charged act that it would identify defendant as the probable assailant. Nor was this prior conviction and the motive that drove him to that act relevant in identifying the actual assailant here. Thus, the only remaining use the jury could put this evidence to was to infer defendant’s propensity to commit violent offenses. We conclude that the trial court abused its discretion in admitting evidence of defendant’s prior conviction under SDCL 19-12-5 (Rule 404(b)).

[¶ 28.] Reversed.

[¶ 29.] SABERS, and MEIERHENRY, Justices, concur.

[¶ 30.] GILBERTSON, Chief Justice and ZINTER, Justice, dissent.

GILBERTSON, Chief Justice

(dissenting).

[¶ 31.] I respectfully dissent. I would affirm the trial court as I conclude it did not abuse its discretion in the admission of the testimony of Beckmann.

[¶ 32.] I agree with the Court that the correct standard of review is that of abuse of discretion. State v. Red Star, 2001 SD 54, ¶ 10, 625 N.W.2d 573, 576. Under this standard we will not reverse a trial court’s evidentiary ruling if “we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715 (S.D.1995) (citing Rosen’s, Inc. v. Juhnke, 513 N.W.2d 575, 576 (S.D.1994) (additional citations omitted)). “Abuse of discretion is the most deferential standard of review available with the exception of no review at all.” In re SD Microsoft Antitrust Litigation, 2003 SD 19, ¶ 27, 657 N.W.2d 668, 678 (emphasis added) (citations omitted). Under such a deferential standard “we must be careful not to substitute our reasoning for that of the trial court.” State v. Larson, 512 N.W.2d 732, 736 (S.D.1994) (quoting State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). I submit that based on our existing case law in this jurisdiction, “[w]hile the majority properly states the [correct standard of review] it fails to articulate how ‘a judicial mind, in view of the law and circumstances, could not have reasonably reached the same conclusion’ as this trial court.” State v. Chamley, 1997 SD 107, ¶ 51, 568 N.W.2d 607, 620 (Gilbert-son, J., dissenting) (citing State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820).

[¶ 33.] First, I disagree with the Court’s analysis as to identity and the admissibility of the prior assault. The Court would rely on case law from other jurisdictions to now require “similarity must be at the highest level and the commonalities must be unique[.]” State v. DeVincentis, 150 Wash.2d 11, 74 P.3d 119, 125 (2003) (emphasis added). The Court would further limit admissibility to situations where the victim of the uncharged act and the charged act was the same person or the victims, although not the same person, were members of the same class. See United States v. LeBaron, 156 F.3d 621 (5th Cir.1998). This analysis creates a heightened standard that is inconsistent •with our established case law.

[¶ 34.] In State v. Pedde, 334 N.W.2d 41 (S.D.1983), the Court was called upon to define the nature of similarity required for prior acts to be admissible under the relevance prong when identity was at issue. Although acknowledging a signature crime requirement was an option, the Court rejected this approach and ultimately opted to follow the analysis employed by the Eighth Circuit Court of Appeals: “[T]o be admissible, evidence of prior acts need not be that of an identical offense but only ‘of similar involvement reasonably related to the offending conduct.’ ” Id. at 43 (quoting United States v. Gocke, 507 F.2d 820, 825 (8th Cir.1974), cert denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975)).

[¶ 35.] Second, the trial court allowed the prior acts into evidence for the limited purposes of establishing identity, motive and intent. We have repeatedly held that the State is entitled to establish each element of the crime in its own manner within recognized rules of evidence. State v. Herrmann, 2004 SD 53, ¶ 12, 679 N.W.2d 503, 507. When a defendant enters a complete denial to a charged offense which contains an intent element, the state may use proof of similar acts in order to carry its burden on the intent element. State v. Klein, 444 N.W.2d 16, 19 (S.D.1989) (citing State v. Champagne, 422 N.W.2d 840, 843 (S.D.1988)). See also Pedde, 334 N.W.2d at 43. Moreover, our general proposition is that if the evidence is offered for any purpose other than to prove a person’s character or propensity to commit an act, it is admissible unless more prejudicial than probative. State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798.

[¶ 36.] Lassiter took the stand and testified under oath he was not even at the crime scene that day. There was no stipulation between the State and Lassiter as to the State being relieved of its burden of proof on the element of intent in the charges of Aggravated Assault, SDCL 22-18-1(5) and Burglary in the First Degree, SDCL 22-32-1(1). Lassiter entered a general denial which required the State to prove each element of the offense. Once Lassiter’s general denial firmly placed the issues of identity, intent and motive into contention, he allowed the state to offer relevant prior bad acts under 19-12-5 (Rule 404(b)) to carry its burden.

[¶ 37.] Despite the overwhelming South Dakota case law that supports admission of prior bad acts whenever intent is at issue, the Court’s analysis side-steps that case law. In Klein, the defendant was convicted of burning to defraud an insurer and attempted theft by deception for setting his house on fire to avoid foreclosure. The Court affirmed the trial court’s admission of prior convictions of theft by deception for a felony bad check scheme similarly motivated by the fact that the defendant was at that time behind on his house payments. We concluded the prior bad check scheme was relevant as to motive and “of similar involvement reasonably related to the offending conduct.” 444 N.W.2d at 19 (emphasis added) (citing Gocke, 507 F.2d at 825).

[¶ 38.] In State v. Lodermeier, 481 N.W.2d 614 (S.D.1992), the defendant claimed the prior bad act where defendant previously was found in possession of stolen machinery and had removed a stick-on dealer label was not sufficiently similar to be admitted to show his intent to possess stolen machinery or that he possessed items with serial numbers knowingly removed. Id. at 626. This Court rejected the claim and affirmed the trial court. The Court noted that the standard previously followed in Pedde and Klein was consistent with the standard followed by the Eighth Circuit:

A prior act admitted to show guilty knowledge need not be identical to the crime charged. It need only be “reasonably related to the offending conduct.” Klein, 444 N.W.2d at 19 (quoting State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983)); United States v. Gocke, 507 F.2d 820, 825 (8th Cir.1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975). In other words, it need only be “sufficiently similar to support an inference of criminal intent.” United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir. 1987).

Lodermeier, 481 N.W.2d at 625-26. See also State v. Loftus, 1997 SD 94, ¶ 25, 566 N.W.2d 825, 830.

[¶ 39.] In Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610, the issue involved the tort of alienation of affections. The defendant objected to the admission of evidence that he had an affair with a fellow employee some twenty years earlier. Id. ¶ 41, 589 N.W.2d at 619-20. We upheld admission of the evidence while noting that intent was an element of the cause of action. Id. ¶ 44. We stated:

As the defendant rarely admits the crucial element of intentional wrongful conduct, it must be established by the plaintiff through circumstantial evidence to avoid being nonsuited.

Id. ¶ 43.

[¶ 40.] This insight is particularly applicable here as when the victim was hit in the head with the rock, he claimed he inquired of the defendant, “are you going to kill me?” Rather than verbally indicate his intent, the purported victim testified that Lassiter merely smiled — a gesture which could mean a multitude of possibilities.

[¶ 41.] More recently in Novak v. McEldowney, 2002 SD 162, 655 N.W.2d 909, the plaintiff, the wife of defendant’s hired man, sued the defendant for intentional infliction of emotional distress, battery and sexual harassment. The trial court refused to admit evidence of suggestive acts committed in the presence of another woman who was the wife of another hired man. Id. ¶ 6, 655 N.W.2d at 912. We reversed the trial court holding it was an abuse of discretion to fail to admit the other acts evidence of intent as “[i]t is claimed that McEldowney made sexually suggestive comments and committed unwanted touching to both” the wives of defendant’s employees. Id. ¶ 15. In reaching this conclusion, we considered the similarity of both the victims and crimes but did not speak in terms of “unique” commonalities or “highest” levels of similarity. Id.

[¶ 42.] In the instant case, the issue of motive was similarly dismissed by the Court. In Instruction No. 22, the trial court properly instructed the jury that the prior bad acts could “be used only to show: motive, intent, or identity of the person charged.” Because the jury was properly instructed on the issue of motive, this Court must evaluate the usage of the prior bad acts evidence for this permissible and reasonable purpose considered by the trial court or risk substituting “our reasoning for that of the trial court.” See Larson, 512 N.W.2d at 736 (quoting Rufener, 392 N.W.2d at 426).

[¶ 43.] A most similar case on point is State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001). In Lloyd, evidence of the defendant’s prior shooting of his ex-girlfriend’s boyfriend was admitted to show the defendant’s motive in shooting his current girlfriend who had left him for another man. Id. at 608-09. That court held the strong evidence of jealousy in both crimes was relevant to the current charge, and held the prior bad act was properly admitted under 404(b) as evidence of motive. Id. at 609.

[¶ 44.] The existing South Dakota standard as announced in Pedde, Klein, and Lodermeier, and most recently applied in Veeder, Lofbus and McEldowney is a substantially different standard than the one the Court now adopts. Applying this heightened standard, the majority concludes that “while the pattern of other crimes demonstrates some similarities, we cannot say that the fact finder could properly use those similarities to conclude that both crimes were committed by one individual.” Moreover, the new heightened standard is at odds with our general proposition that if the evidence is offered for any purpose other than to prove a person’s character or propensity to commit an act, it is admissible. See Wright, 1999 SD 50, ¶ 13, 593 N.W.2d at 798.

[¶ 45.] Both SDCL 19-12-3 and 19-12-5 were adopted as rules of the Court in 1978. Neither has been amended since that time. The Court today cites to no previous cases of this Court that support the new doctrine which it now adopts. Moreover, the cases it cites from other jurisdictions were all decided well after the enactment of SDCL 19-12-3 and 19-12-5. The Court offers no supporting arguments that at the time these rules were enacted, it was the intent of this Court in 1978 to have these rules stand for what in 2005 the Court now concludes they currently mean. If the Court wants to amend SDCL 19 — 12— 3 and 19-12-5, it should follow its own procedures and hold public hearings on a proposed amendment to the existing rules rather than engage in a de facto amendment as it does today. Under our canons for interpretation of rules, statutes and constitutional provisions, significant limitations are placed upon our judicial authority. As Justice Hugo Black previously observed:

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old fashioned I must add it is good enough for me.

Griswold v. Connecticut, 381 U.S. 479, 522, 85 S.Ct. 1678, 14 L.Ed.2d 510, 537 (1965) (Black, J., dissenting).

[¶ 46.] Based on the case law of South Dakota, which is the interpretative guidance to SDCL 19-12-3 and SDCL 19-12-5, the trial court possessed a judicial mind in view of the law and circumstances when it reached its conclusion. For the above reasons I would affirm the trial court and therefore respectfully dissent.

ZINTER, Justice

(dissenting).

[¶ 47.] I join the Court’s opinion concerning the prior assault’s inadmissibility to prove modus operandi under the identity exception in SDCL 19-12-5 (Rule 404(b)). However, in my view, the prior assault was admissible under the motive exception; ie., to prove that a “jilted” Lassiter had a motive to assault his former girlfriend’s new boyfriend.

[¶ 48.] As the Court notes, prior acts are admitted under the motive exception to prove identity in two types of cases. In the first type, the prior act supplies the motive for the charged act. See supra ¶ 21 (citing Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3.15 (Rev. ed. 1999 & Supp. 2004)). This is not that type of case.

[¶ 49.] This is the second type of case in which “the uncharged act evidences the existence of a motive, but does not supply the motive.” See supra ¶ 22 (citing Im-winkelried, § 3.18). The uncharged act is relevant when identity is at issue because the uncharged crime evidences the same motive that impelled the charged crime. See, Imwinkelried, § 3.18 at 103. Imwink-elried explains:

the motive is the cause, and both the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive. The prosecutor uses the uncharged act to show the existence of the motive, and in turn the motive strengthens the inference of the defendant’s identity as the perpetrator of the charged crime.

Id.

[¶ 50.] Prior uncharged acts are typically admitted in this type of case when “the motive is in the nature of hostility, antipathy, hatred or jealousy,” and there is some relationship between the victims. Supra ¶ 22 (citing Imwinkelried, supra § 3.18). The Court observes that there was no relationship between Beckmann and Davis, and therefore, it concludes that the prior uncharged acts evidence was only used to prove Lassiter’s general violent nature. See supra ¶¶ 22-23. However, the Court’s reliance on a “relationship between the victims” fails to analyze whether Beck-mann and Davis were members of a class of victims. See supra ¶ 22. Imwinkelried collects numerous cases holding that uncharged acts are also admitted when the hostility, antipathy, hatred or jealousy is “against a class which included the victim.” Supra § 3.18 at 103.

[¶ 51.] Here the victims were unrelated, but they were members of a well-recognized class. This class is composed of individuals that are subject to domestic violence because of their direct or indirect association with the non-consensual breakup of domestic relationships. It includes women who are former spouses or girlfriends (in this case Lori Beckmann and Brenda Tobin), and the new boyfriend (Davis). There is an obvious relationship and connection among the victims in this class. Indeed, daily news reporting and the examination of any court docket confirm the existence of this class of endangered people. The hostility, antipathy, hatred and jealousy that often exist against this class is a fact of life that we cannot ignore.

[¶ 52.] Consequently, even though the victims are unrelated, courts permit the admission of an uncharged act as proof of motive in the charged crime if the victims are members of the class of individuals involved in broken domestic relationships involving the defendant. For example, in Johnson v. State, 936 P.2d 458, 465 (Wyo.1997), the assault of a former girlfriend was admitted to prove motive for a subsequent assault of a second, unrelated girlfriend. As the Wyoming Supreme Court explained:

Motive was also at issue in this case given that “the prosecution is permitted to prove the accused’s motive to identify the accused as the perpetrator of the charged crime.” According to Professor Imwinkelried: “Motive is not an ultimate fact or element of the crime; rather it is an intermediate, evidentiary fact. The courts have variously described the concept of motive as the ‘reason that nudges the will and prods the mind to indulge the criminal intent,’ an ‘inducement or state of feeling that impels and tempts the mind to indulge in a criminal act,’ and ‘the moving force which impels to action for a definite result.’ While intent accompanies the actus reus, the motive comes into play before the actus reus. The motive is a cause, and the actus reus is the effect.” He continued: “[T]hat the defendant had a motive for that particular crime increases the inference of the defendant’s identity. Many other persons presumably had no motive, and the defendant’s motive raises the probability of defendant’s identity.... It is ideal if the defendant is the only person with such a motive. At the other extreme, if the motivation is almost universal such as a general sexual desire, proof of the motive has little or no probative value on the issue of identity. In the motive cases ... the courts do not insist that the motive be truly unique to the defendant. The courts assume that motive has strong probative value because a motive naturally leads to action. If the motive is not universal but shared by many other persons, the courts tend to admit the proof of motive.”

936 P.2d at 464 (quoting Mitchell v. State, 865 P.2d 591, 596-597 (Wyo.1993) (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3.15 (1992 & Supp. 1993))) (internal citations omitted).

[¶ 53.] Moreover, the admission of pri- or domestic assaults has been extended from prior girlfriends to third parties such as Davis. “[T]he web of spousal discord often entangles third parties, and accordingly, [we] have extended the scope of the motive exception to allow evidence showing wrongful acts against the spouse when the ultimate crime was committed against a third party.” Mitchell v. United States, 629 A.2d 10, 13-14 (D.C.1993). The motive exception has even been used to admit a prior assault upon a defendant’s first girlfriend’s new boyfriend, when the charged crime of murder was committed against the defendant’s second girlfriend. It was admitted to prove identity through the common motive, jealousy, that was displayed after each woman broke off the domestic relationship. The North Carolina Supreme Court described this three-person relationship (or class) as a “romantic triangle.” State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596, 603 (2001).

[¶ 54.] I would follow these authorities and recognize that in recently broken domestic relationships, the jilted boyfriend, his ex-girlfriends, and their new boyfriends are members of a class. Membership in that class makes the perpetrator’s common hostility, antipathy, hatred and jealousy towards members of this class relevant to prove identity. It simply ignores reality not to acknowledge the common motive and relationship that exists among the individuals involved in what the Lloyd court described as “romantic trianglefe].” Even this Court acknowledges the foundation for this class when it concedes that Lassiter’s “breakup with Tobin supplied evidence of a possible motive for defendant to assault her new boyfriend.” Supra ¶ 23.

[¶ 55.] We should therefore recognize this class of domestic violence victims. A judicial mind could have reasonably reached the conclusion that Lassiter was unable to deal with being “jilted,” he harbored ill will and hostility towards those directly and indirectly involved, and therefore, he had a motive to threaten and assault members of this class. What else explains Lassiter’s motive to assault a stranger such as Davis? Only one thing: Lassiter’s common motive following the breakup of domestic relationships. Because motive is the only explanation for this defendant to act against this particular victim, the uncharged act increases the inference of the defendant’s identity. Given that hostile and jealous motives are, unfortunately, all too real within this class, I would recognize the relevancy of motive to prove identity. Therefore, I would affirm the trial court.

      . Because we reverse on the second issue, we need not address the other issues.

      . The trial court concluded that the evidence was also relevant to show intent. At no time was the mens rea of the assailant brought into question. Clearly, the assailant intended to commit the act. Lassiter’s alibi defense only placed in controversy the identity of the assailant. Thus, the more liberal allowance of prior acts evidence to prove mens rea is inapplicable here. Cf. Red Star, 2001 SD 54, ¶ 11, 625 N.W.2d at 577. Relevancy is demonstrated where evidence is necessary to prove an element of the crime, not simply to demonstrate defendant’s character. Id.
        threats to kill admissible on defendant's motive for purpose of proving identity of defendant as killer).

      . See also State v. Green, 232 Kan. 116, 652 P.2d 697, 701 (1982) (marital homicide-evidence of discordant marital relationship, of defendant’s ill treatment of spouse, and prior

      . "The danger of prejudice is also greater when the mode of proving the motive is by other similarly motivated acts because the danger that the jury will infer propensity is somewhat greater titan when the motive is to be proved by other acts that caused it.” 22 WRIGHT & GRAHAM, supra 5240, at 484.

      . LeBaron does not stand for the proposition that victims must be members of the same class in order to admit prior bad acts to prove motive. The issue in LeBaron was whether to admit a prior murder to show a common scheme or comprehensive plan. Motive to eliminate all former members of the church was the unifying factor between the prior murder and the murders charged. LeBaron, 156 F.3d at 625.

      . Pedde, 334 N.W.2d 41 (S.D.1983), is particularly instructive as three members of that Court were also on the Court at the time of the adoption of SDCL 19-12-3 and 19-12-5 in 1978.

      . The use of 404(b) evidence to prove identity is distinct from the use of prior acts to show intent. United States v. Carroll, 207 F.3d 465, 468 (8th Cir.2000).

      . "[Mjotive is the 'reason a person chooses to commit a crime,’ but it is not equivalent to the 'mental state such as intent' required to commit the crime.” People v. Cash, 28 Cal.4th 703, 122 Cal.Rptr.2d 545, 50 P.3d 332, 353 (2002) (quoting People v. Hillhouse, 27 Cal.4th 469, 117 Cal.Rptr.2d 45, 40 P.3d 754, 777 (2002)).

      . The Court today, armed largely with legal treatises together with a few unpersuasive cases from other non-binding jurisdictions instead of case law from South Dakota, overturns over twenty years of this State's case law that permits the admission of prior bad acts to show intent when "of similar involvement reasonably related to the offending conduct.” See Pedde, 334 N.W.2d at 43. Do we dismiss Pedde, Klein, 444 N.W.2d 16, Lodermeier, 481 N.W.2d 614, Veeder, 1999 SD 23, 589 N.W.2d 610, and others in favor of a more stringent standard advocated by Im-winkelried, Wright & Miller, and McMor-mick?
      SDCL 1-1-23 provides:
      The will of the sovereign power is expressed:
      (1)By the Constitution of the United States;
      (2) By treaties made under the authority of the United States;
      (3) By statutes enacted by the Congress of the United States;
      (4) By the Constitution of this state;
      (5) By statutes enacted by the Legislature;
      (6) By statutes enacted by vote of the voters;
      (7) By the ordinances of authorized subordinate bodies;
      (8) Rules of practice and procedure prescribed by courts or adopted by departments, commissions, boards, officers of the state, or its subdivisions pursuant to authority so to do.
      Noticeably absent from this statute is any authority that after-the fact privately authored legal treatises are a basis to overturn our existing South Dakota court rules and interpretative case law.

      . The remaining two issues are without merit.

      . Imwinkelried cites decisions that have permitted admission of prior acts involving members of classes such as, nonunion workers, persons connected with the Yugoslav government, Jewish persons and organizations, members of the same racial group, other women, and daughters. Id. See Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 276 (1938); People v. Pertsoni, 172 Cal.App.3d 369, 218 Cal.Rptr. 350 (1985); United States v. Khorrami, 895 F.2d 1186 (7th Cir.1990); United States v. McInnis, 976 F.2d 1226 (9th Cir. 1992); Schurman v. Leonardo, 768 F.Supp. 993 (S.D.N.Y.1991); State v. Jackson, 82 Ohio App. 318, 81 N.E.2d 546 (Ct.App.1948); Masters v. People, 58 P.3d 979 (Colo.2002).

      . Although this Court attempts to distinguish Johnson, noting that it discussed the "substantial similarities” of those two offenses, that discussion does not make the case distinguishable. First, the "similarity of offenses” discussion in Johnson was only one of three alternative grounds for admitting ‘the other acts evidence (it was part of the court’s opinion on proof of identity by modus operandi). However, the court also discussed motive to prove identity, and the motive discussion was a separate, independent basis for admission of the other acts. Consequently, Johnson was not a case that was limited to proof of identity by the commission of substantially similar offenses. The Wyoming Supreme Court's alternative discussion of motive was clearly part of the holding of the case.
      Second, this Court's use of the "substantial similarities” discussion to distinguish Johnson is legally misplaced. Imwinkelried explicitly notes that when the motive exception is involved, the "uncharged act need not be similar to the charged crime to evidence the common motive.” Imwinkelried, § 3.18 at 103.

      . "Spousal” relationships are not limited to marriage. "For these purposes, a significant relationship can be the functional equivalent of a marriage.” Mitchell v. United States, 629 A.2d 10, 13, n. 6 (D.C.1993) (citations omitted).

      . Contrary to the Court's opinion, the prior assault of Beckmann and the motive that drove Lassiter to that act assisted the jury in identifying the actual assailant here. Nothing else explained why Lassiter would assault a stranger. Therefore, character was not the "only justification” for admission of the prior assault, and furthermore, it was not offered to "smuggle forbidden [propensity] evidence.” Supra ¶ 24. It is true that "[i]f the only reason for offering the evidence is to show a defendant's propensity, then it is clearly irrelevant.” State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 799. However, propensity was not the only reason for admission of the prior act and "[ojnce the evidence is found relevant ... the balance tips emphatically in favor of admission unless the dangers set out in Rule 403 'substantially' outweigh probative value.” Id.

      . Lassiter’s other issues are without merit.