author: BASTIAN, Circuit Judge.

text:
    2002 SD 123
    Tanthony SANDNER, Claimant and Appellant, v. MINNEHAHA COUNTY, Employer and Appellee, and SDML Workers Compensation Fund, Insurer and Appellee.
    Nos. 22193, 22196.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Oct. 9, 2002.

      Kent R. Cutler and Kimberly R. Was-sink of Cutler & Donahoe, Sioux Falls, for claimant and appehant.

      Comet H. Haraldson of Woods, Puller, Shultz & Smith, Sioux Palls, for appellees.
   BASTIAN, Circuit Judge.

[¶ 1.] In this appeal we uphold the determination of the South Dakota Department of Labor (Department) and the circuit court that a workers’ compensation claimant was not permanently and totally disabled.

FACTS

[¶ 2.] Anthony Sandner (Sandner) injured his back at the Minnehaha County Courthouse in April 1997 while employed by County as a custodian. He sustained a right-sided herniation at the L4-5 level. County and its insurer, the South Dakota Municipal League (SDML), accepted the injury as compensable. Dr. Matthew McKenzie performed a microdiskectomy on Sandner in June 1997. Dr. McKenzie released Sandner to return to full time work in August 1997, but restricted his activity. Under the restrictions Sandner could not move furniture, scrub on his hands and knees, or lift over 30 pounds.

[¶ 3.] When Sandner reported for work County offered him an alternate position that incorporated Dr. McKenzie’s limitations. The new position was similar to his former one and would pay him the same wage but it involved working at night instead of during the day as he had done before. Sandner rejected County’s offer and voluntarily resigned in August 1997 because he did not want to work at night. After his resignation he had no further discussion with County concerning future employment.

• [¶4.] In September 1997 Sandner re-injured his back while lifting a laundry basket. A new herniation was found on the left side. Dr. McKenzie performed a second microdiskectomy in October 1997. After the surgery, Dr. McKenzie instructed Sandner to take “a common sense approach ■ to living life” and recommended that he avoid lifting over 35 to 40 pounds, avoid constant stooping, and bending, and stop smoking cigarettes. In November 1997 Sandner was released to work and one year later Dr. McKenzie assigned him a ten percent whole body impairment.

[¶ 5.] While County and SDML admitted that the April 1997 injury was compen-sable, it denied benefits for the second injury. The issues of compensability and damages were bifurcated. After a hearing in 1999, Department found that the first injury was a major contributing cause of the second injury. The finding was affirmed on appéal to the circuit court.

[¶ 6.] After a hearing on damages in August 2000, Department found that while Sandner could not return to a custodial position, he was not totally and permanently disabled. The circuit court affirmed and Sandner appeals.

STANDARD OF REVIEW

[¶ 7.] Our standard of review was aptly stated in Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, 619 N.W.2d 260:

We make the same review of the agency’s decision as the circuit court, and the circuit court’s decision enjoys no presumption of correctness. We give great1 weight to the findings and inferences made by the agency on factual questions. We apply the clearly erroneous standard to these findings of fact meaning we carefully review the entire record and will reverse only if we are “definitely and firmly convinced a mistake has been committed.... ” Agency decisions concerning questions of law, however, are “fully reviewable.” In addition, “we review findings based on deposition testimony and documentary evidence under a de novo standard of review.”

Grauel, 2000 SD 145 at ¶ 7, 619 N.W.2d at 262 (internal citations omitted).

DECISION

[¶ 8.] Sandner argues that Department erred in finding he was not permanently and totally disabled. Whether a person is totally and permanently disabled is governed by SDCL 62-4-53:

An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, training, and experience and the type of work available in the employee’s community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. An employee has the burden of proof to make a prima facie showing of permanent total disability. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant in the community. An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.
If an employee chooses to move to an area to obtain suitable employment that is not available within the employee’s community, the employer shall pay moving expenses of household goods not to exceed four weeks of compensation at the rate provided by § 62-4-3.

[¶ 9.] The terms used in SDCL 62-4-53 are defined in SDCL 62-4-52 as follows:

(1) “Community,” the area within sixty road miles of the employee’s residence unless:
(a) The employee is physically limited to travel within a lesser distance;
(b) Consideration of the wages available within sixty road miles and the cost of commuting to the job site makes it financially infeasible to work within such a distance;
(c) An employee has expanded the employee’s community by regularly being employed at a distance greater than sixty road miles of the employee’s residence, in which case community shall be defined as that distance previously traveled.
(2) “Sporadic employment resulting in an insubstantial income,” employment that does not offer an employee the opportunity to work either full-time or part-time and pay wages equivalent to, or greater than, the workers’ compensation benefit rate applicable to the employee at the time of the employee’s injury. Commission or piece-work pay may or may not be considered sporadic employment depending upon the facts of the individual situation.

[¶ 10.] There are two ways for a claimant to make a prima facie showing necessary to fall under the odd-lot category:

First, if the claimant is “obviously unemployable,” then the burden of production shifts to the employer to show that some suitable employment within claimant’s limitations is actually available in the community. A claimant may show “obvious unemployability” by: 1) showing that his “physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category,” or 2) “persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims.”
Second, if “‘the claimant’s medical impairment is so limited or specialized in nature that he is not obviously unemployable or regulated to the odd-lot category,’ then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made ‘reasonable efforts’ to find work” and was unsuccessful. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that “some form of suitable work is regularly and continuously available to the claimant.” Even though the burden of production may shift to the employer, hoioever, the ultimate burden of persuasion remains with the claimant.

McClaflin v. John Morrell & Co., 2001 SD 86, ¶ 8-9, 631 N.W.2d 180, 183 (internal citations omitted) (emphasis added).

[¶ 11.] Sandner does not argue that he suffers severe and debilitating pain that renders him obviously unemployable. In fact, at the time of the hearing he was working thirty-five hours per week as a nursing assistant. Therefore, he must meet the second prong of the test and prove the unavailability of suitable employment by showing that he has made reasonable efforts to find work and was unsuccessful.

ISSUE ONE

[¶ 12.] Whether Sandner met the initial burden of production.

[¶ 13.] The employee has the burden of proof to make a prima facie showing of permanent total disability. SDCL 62-4-53. Department found that Sandner met his initial burden of proof. The test to determine whether a prima facie case has been established is whether there “are facts in evidence which if unanswered would justify persons of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain.” Rosen’s Inc. v. Juhnke 513 N.W.2d 575, 577 (S.D.1994).

[¶ 14.] Sandner introduced into evidence two job logs that indicated that he sought employment with as many as 140 employers in many locations including the South Dakota cities of Sioux Falls, Tea, Mitchell, Parker, Ellis, Salem, Crooks, Baltic, Lennox, Canistota, and Montrose. Sandner registered with Job Service, completed a career assessment inventory, and participated in the work adjustment-training program. Sandner also worked with the South Dakota Rehabilitation Services program where he was assigned to work with Deb Brinkman, a rehabilitation counselor. Brinkman assisted Sandner in retraining and finding new employment. .

[¶ 15.] Brinkman administered the General Aptitude Test Battery (GATB) which measures general learning ability, hand-eye coordination, math skills, and verbal and communication skills. Brink-man believed that a GED would not be beneficial in increasing Sandner’s wages to meet his compensation rate. Brinkman also opined that Sandner would have difficulty with vocational training but she did not believe that such training was unfeasible.

[¶ 16.] Sandner hired Rick Ostrander, a vocational rehabilitation counselor, who testified that Sandner was permanently and totally disabled under South Dakota law. His conclusion was based on some of Sandner’s medical records, job logs, vocational assessments, and discussions with Sandner.

[¶ 17.] Thus, Department’s finding that Sandner met his burden of production is not clearly erroneous. Sandner brought forth evidence which, if unchallenged, would lead reasonable persons to believe that he made reasonable, good faith efforts to find suitable employment but was unsuccessful. This evidence, if believed, tends to show that Sandner was unable to obtain anything more than sporadic employment resulting in insubstantial income and that he was permanently and totally disabled. This effectively shifted the burden of production to County and SDML to show that some form of suitable work is regularly and continuously available to the claimant in the community. SDCL 62-4-53; McClaflin, supra.

ISSUE TWO

[¶ 18.] Whether the County and SDML met its burden of production.

[¶ 19.] Bruce Rogers, a rehabilitation consultant who was employed by County and SDML to assist Sandner in attaining suitable employment, testified that Sandner was not totally and permanently disabled because there were many jobs open and available within Sandner’s community that would pay him a suitable wage. Rogers’ opinion was based upon a job search he personally conducted for Sandner. Rogers also took into consideration the physical restrictions imposed by Dr. McKenzie.

[¶ 20.] Thus, Department’s finding that County and SDML also met their burden of production is not clearly erroneous. Rogers’ findings and recommendations are discussed in more detail, below.

ISSUE THREE

[¶ 21.] Whether Sandner met the burden of persuasion.

A. Sandner failed to prove that he made a reasonable, good faith work search effort or that such efforts would be futile.

[¶ 22.] Although the burden of production may shift to the employer, the ultimate burden of persuasion remains with the claimant. McClaflin, supra; Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991). Sandner was- required to introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. SDCL 62-4-58. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. Id.

[¶ 23.] Ostrander testified that Sandner made a reasonable, good faith, albeit unsuccessful, work search effort. Department rejected Ostrander’s testimony as having no solid basis in fact for two reasons. The first is that Ostrander did not conduct an actual job search. The second is that Ostrander was not aware of Dr. McKenzie’s opinion regarding Sand-ner’s physical restrictions. “The value of the opinion of an expert witness is no better than the facts upon which it is based. It cannot rise above its foundation and proves nothing if its factual basis is not true.” Johnson v. Albertson’s, 2000 SD 47, ¶ 25, 610 N.W.2d 449, 455.

[¶ 24.] Rogers, on the other hand, identified specific jobs that would be suitable for Sandner. The jobs met or exceeded his workers compensation rate and were compatible with his physical limitations.

[¶ 25.] Rogers identified job leads in Sioux Falls that he believed would pay higher than the workers compensation rate. Sandner had lived in Canistota and commuted to Sioux Falls for years. Rogers testified, however, that Sandner was not willing to go to Sioux Falls unless the wage was substantially higher. Sioux Falls was within Sandner’s community because it is within 60 road miles of his residence and because Sandner had regularly commuted to Sioux Falls in the past. Sandner did not present any evidence that the cost of the commute would make employment in Sioux Falls financially infeasible. In fact, both Brinkman and Ostran-der agreed that employers in Sioux Falls were paying $9.00 per hour for menial labor. That amount is well above Sandner’s workers compensation rate. There is no evidence that Sandner has any physical limitations that would prevent him from making the commute to Sioux Falls.

[¶ 26.] Additionally, Rogers testified that Sandner did not follow up on 32 of 95 job leads that he provided. Rogers also testified that of the job referrals that Sandner did follow up, he did not do so until after most of the jobs were filled. Department found Rogers’ opinion carried greater weight than that of Brinkman because Rogers conducted a job search specifically for Sandner while Brinkman did nofi

[¶ 27.] Based upon a review of all of the evidence, we find that Department was not clearly erroneous in concluding that Sandner did not make a reasonable, good faith work search effort.

B. Sandner failed to prove that he would not benefit from, vocational rehabilitation or that such rehabilitation was not feasible.

[¶ 28.] Sandner was required to introduce expert opinion evidence that he was unable to benefit from vocational rehabilitation or that the same was not feasible. SDCL 62-4-53. Relying on Sandner’s GATB scores, Brinkman testified that Sandner would probably not benefit from a GED and would have difficulty with vocational training. However, she did not testify that retraining was not feasible. Os-trander, also relying on Sandner’s GATB scores, did not explore any retraining options. Sandner did not pursue any retraining based, in part, on his dislike for school.

[¶ 29.] Rogers, on the other hand, testified that Sandner would benefit from vocational rehabilitation and particularly from training in basic keyboarding and computers. Rogers based his opinion on Sand-ner’s GATB scores, particularly his finger dexterity scores. Although such training would be challenging, Rogers had no doubt that it would benefit Sandner and would enhance his employability, accommodate his restrictions, and pay him a wage in excess of his workers’ compensation rate. Rogers suggested that such training could lead to work in customer service positions that were available in the Sioux Falls community. Department concluded that Sand-ner failed to establish through expert opinion that he was unable to benefit from vocational rehabilitation or that the same was not feasible.

[¶ 30.] We find that Department was not clearly erroneous in concluding that Sandner would benefit from vocational rehabilitation.

CONCLUSION

[¶ 31.] This case was primarily a trial of experts and all experts testified live at the hearing. Thus, deference must be given to Department which had an opportunity to observe the experts’ de-meanors and weigh their credibility. Goebel v. Warner Transportation, 2000 SD 79, ¶ 32, 612 N.W.2d 18. The trier of fact is free to accept all of, part of, or none of, an expert’s opinion. Johnson, supra, at ¶ 26, 610 N.W.2d at 455. Furthermore, the reviewing agency is not required to accept the testimony of the claimant and is free to choose between conflicting testimony. Id.

[¶ 32.] Under our standard of review, we cannot say that Department’s findings were clearly erroneous because after a careful review of the entire record we are not definitely and firmly convinced that a mistake has been made.

[¶ 33.] We find the remaining issues raised by the parties to be without merit.

[¶ 34.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and STEELE, Circuit Judge, concur.

[¶ 35.] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 36.] STEELE, Circuit Judge, for ZINTER, Justice, disqualified.

      . County and SDML filed a notice of review and argue that the first injury was not a major contributing cause of the second injury and was therefore not compensable. Department's finding to the contrary was affirmed on appeal to the Hughes County Circuit Court in a separate action in March 2000. No appeal was taken from the court’s decision and we find we are without jurisdiction to consider the matter here.

      . In workers compensation cases the law in effect on the date of the injury governs the rights of the parties. Loewen v. Hyman Freightways, Inc., 1997 SD 2 ¶ 9, 557 N.W.2d 764, 766. In this case, the applicable statute is the pre-1999 amendment version of SDCL 62-4-53 and 62-4-52.

      . County disputes the gross number of employers that Sandner claims to have contacted. County points to handwritten notes on the job logs which indicate that Sandner may not have actually contacted many of the employers listed. Department found that Sand-ner contacted dozens of employers. This finding is not clearly erroneous.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 125
    STATE of South Dakota, Plaintiff and Appellee, v. Mark Joseph SULLIVAN, Defendant and Appellant.
    No. 22237.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Oct. 9, 2002.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Mark Sullivan appeals his convictions on four counts of forgery. We affirm.

FACTS

[¶ 2.] From October 2000 to March 2001, Sullivan was employed by Ionex Communications of Sioux Falls. Ionex is a telephone service provider and Sullivan was employed as a sales representative working on a commission basis. In late 2000 and early 2001, Sullivan made a series of contacts with three different businessmen in Madison. One of the three men managed two branches of an agricultural service business. Each of the other two men owned their own business. None of the three agreed to purchase their business telephone services from Ionex.

[¶ 3.] In January 2001, Sullivan turned four sets of signed contracts into Ionex for the sale of services to the different businesses he had contacted in Madison. Sullivan later admitted signing the agricultural service manager’s name on two of the sets of contracts and one of the business owner’s names on a third set. An internal company investigation uncovered evidence that Sullivan forged the second business owner’s name on the fourth set of contracts.

[¶ 4.] Sullivan was indicted in Lake County for four counts of forgery under SDCL 22-39-36: “Any person who, with intent to defraud, falsely makes, completes or alters a written instrument of any kind, or passes such an instrument is guilty of forgery. Forgery is a Class 5 felony.” Sullivan waived a jury trial and his trial to the court was held on October 31, 2001. Just before trial, Sullivan’s counsel made an oral motion to dismiss for improper venue in Lake County, which encompasses Madison, rather than Minnehaha County which encompasses Sioux Falls. The trial court denied the motion and the trial proceeded. The State presented testimony from various witnesses including three Io-nex employees. The employees’ testimony generally established that Sullivan had turned the four contracts at issue into the Ionex office in Sioux Falls and that Sullivan was actually paid his commissions in Sioux Falls.

[¶ 5.] At the close of the State’s case, Sullivan’s counsel moved for a judgment of acquittal on the basis that the State’s evidence failed to establish proper venue of the case in Lake County. The trial court denied the motion. Sullivan then took the stand on his own behalf and testified that the contracts he signed were actually signed in Sioux Falls. At the close of all the evidence, Sullivan’s counsel renewed his acquittal motion on the basis of lack of proof of venue. The trial court afforded the parties an opportunity to brief the venue issue. It released its memorandum decision on November 19. The trial court found that Sullivan’s contacts with the three Madison businessmen were indicative of the “intent to defraud” element of forgery, that the contacts established that part of an element of the offenses took place in Lake County and that this provided sufficient proof of venue in that county. Accordingly, the trial court denied Sullivan’s acquittal motion and found him guilty on all four counts of forgery. The trial court subsequently entered formal findings of fact and conclusions of law on the venue issue and sentencing was conducted on December 17. Sullivan was sentenced to concurrent four year terms in the penitentiary on each forgery count. Execution of the sentences was suspended on various terms and conditions including 180 days confinement in the county jail. Sullivan appeals.

ISSUE

[¶ 6.] Did the trial court err in denying Sullivan’s motions for a judgment of acquittal?

[¶ 7.] Sullivan argues that the trial court erred in denying his motions for a judgment of acquittal based upon lack of evidence that any element of forgery took place in Lake County. The standards of review for such contentions are well settled:

The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” “When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”

State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (citations omitted)(quoting State v. Karlen, 1999 SD 12, ¶ 49, 589 N.W.2d 594, 605). In addition, “the question of venue is for [the trier of fact]. The state need only prove venue by a preponderance of the evidence. On appeal, this court accepts the evidence and the most favorable inferences that the [trier of fact] might have fairly drawn therefrom to support the verdict.” State v. Haase, 446 N.W.2d 62, 65-66 (S.D.1989) (citations omitted).

[¶ 8.] SDCL 23A-16-8 provides that, “[w]hen a public offense is committed partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense occur in two or more counties, the venue is in either county.” Courts have applied similar provisions in upholding forgery convictions in scenarios like those in this case.

[¶ 9.] In Robinson v. Commonwealth, 217 Ky. 129, 288 S.W. 1044 (1926), the defendant had another man make out the body of a check to him in the amount of $145. The check was made out in Spencer County, Kentucky, but was left unsigned. The defendant later appeared at a bank in Bullit County, Kentucky and presented the check for payment. By that time, the check contained the signature of a man named A.P. Washburn as its maker and the defendant had endorsed the back of the check. The defendant was paid $145 by the bank in Bullit County and the check was later paid by the bank in Spencer County and charged to A.P. Washburn’s account. There was no direct proof that the defendant signed the name of A.P. Washburn on the check in Spencer County. Yet, the defendant was convicted of forgery in that county. On appeal, the defendant argued that the proof failed to show the act constituting the forgery occurred in Spencer County. Relying on a provision similar to SDCL 23A-16-8, the Kentucky court held:

This section of the Code is remedial in its character, and its object was to extend the lines of jurisdiction beyond the limits prescribed by the common law, and thus prevent a miscarriage of justice. The case before us comes within this section of the Criminal Code, for the purpose to commit the crime of forgery was formed in Spencer county, and the plan of carrying it into execution was there resolved upon, and partly executed there by appellant, by his causing the body of the check to be written, .which was an act necessary to give the check apparent legal efficacy and one of the acts constituting the crime.
As the acts done by appellant in Spencer county were some of the acts constituting the crime of forgery with which he was charged, and as they were material and essential to the crime, he was indictable in that county, irrespective of where the name of A.P. Washburn was written. The trial court, therefore, did not err in overruling appellant’s motion for a directed verdict.

Robinson, 288 S.W. at 1045.

[¶ 10.] In People v. Gerundo, 112 Cal.App.2d 863, 247 P.2d 398 (1952), the defendant, a resident of Napa, California, made arrangements to sell advertising on a commission basis for a publication headquartered in San Francisco. The defendant subsequently turned two checks totaling eighty dollars into the publication’s office in San Francisco, ostensibly for advertising for two different Napa businesses. The checks were deposited with the publication’s bank in San Francisco and were subsequently forwarded to the purported makers’ bank in Napa which dishonored them. The defendant was later charged and convicted of forgery in Napa County. On appeal, he argued that the evidence showed the forgery offenses were committed in San Franciso County and that no part of them was committed in Napa County. Relying on a statute identical to SDCL 23A-16-8, the California Court concluded:

The evidence was sufficient to justify an inference that in Napa County defendant embarked upon a scheme to forge checks and to secure money for himself by cashing them or by tendering them to [the publisher] and securing commissions for advertising which had not been purchased. All of the checks were drawn on Napa banks, and were titled “Napa, Calif.” It was held in People v. Anderson, 90 Cal.App.2d 326, 202 P.2d 1044, and People v. Thorn, 138 Cal.App. 714, 732, 33 P.2d 5, that the county in which preliminary arrangements for the commission of a crime are made is a proper county in which to prosecute the completed offense; and in People v. Me gladdery, supra[, 106 P.2d 84 (1940) ], it was held that venue may extend into any county in which the effects of the offense extend.

Gerundo, 247 P.2d at 402.

[¶ 11.] This Court has employed similar principles in affirming a rape conviction where the series of acts leading to completion of the offense crossed county lines. In Haase, supra, the defendant kidnapped the victim while she was taking an evening walk in Sioux Falls, Minnehaha County, and moved her to an abandoned farmstead in nearby Lincoln County where the rape was finally accomplished. In upholding the rape conviction in Minnehaha County, this Court observed:

Haase forcefully pushed himself on top of the victim in an attempt to sexually assault [her], and ... attempted to remove her clothing prior to leaving Minnehaha County. Moreover, Haase’s intentions were made clear when, frustrated in his attempt to remove the victim’s clothing he stated, “this isn’t going to work.” Obviously, her mode of dress frustrated immediate penetration, which was completed in Lincoln County. These facts could well have supported a charge of attempted rape. Under these facts, it was certainly reasonable for a jury to infer that part of the force, threats and coercion exerted against the victim in Minnehaha County enabled Haase to accomplish the act of sexual penetration in Lincoln County. Therefore, under SDCL 23A-16-8 we find that venue of the rape offense could properly lie in either Minnehaha or Lincoln County.

Haase, 446 N.W.2d at 66 (citations omitted).

[¶ 12.] Applying the foregoing principles here yields a like result. Sullivan’s series of contacts with the three Madison businessmen in a narrow span of time and his use of those individuals’ names and businesses on the four sets of contracts he forged and submitted to Io-nex in January 2001, justifies a reasonable inference that Sullivan first embarked upon his forgery scheme in Madison and formed at least part of his intent to commit his offenses in that community. Therefore, venue for this action could properly lie in either Lake or Minnehaha County. It follows that the trial court did not err in denying Sullivan’s acquittal motions for lack of proof venue in Lake County-

[¶ 13.] Affirmed.

[¶ 14.] GILBERTSON, Chief Justice, SABERS, AMUNDSON, KONENKAMP and ZINTER, Justices, participating.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 126
    Robert KOKESH and Joyce Kokesh, Plaintiffs and Appellees, v. Raymond RUNNING and Helen D. Running, Defendants and Appellants.
    No. 22240.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Oct. 09, 2002.

      John R. Frederickson, Deadwood, South Dakota, Attorney for plaintiffs and appel-lees.
    Harlan A. Schmidt, Spearfish, South Dakota, Attorney for defendants and appellants.
   GILBERTSON, Chief Justice.

[¶ 1.] Robert and Joyce Kokesh (Kok-esh) brought an action seeking a permanent easement over property owned by Raymond Running (Running) and Helen Running (now deceased). The circuit court entered judgment for Kokesh and against Running, finding the existence of a prescriptive easement over a driveway serving Running’s farm house north of Spearfish which was used for access to the Kokesh’ garage adjacent to the farm’s driveway. Running appeals the circuit court’s decision. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Running and Kokesh are the owners of neighboring tracts of land located in Spearfish, South Dakota. Kokesh, owner of Lot 8-C, has a backyard that adjoins the south boundary of Running’s farm. The farm driveway passes the rear lot line of the Kokesh house, and Kokesh used this driveway to access one of their garages, which is located behind the house. The predecessors-in-interest to the Kokesh property are as follows:

A. Lawrence and Olive Johnson (Johnson) from 1943 or 1944 to 1987.
B. Dr. Jay and Elizabeth Schmidt (Schmidt) from September 8, 1987 to May 18,1991.
C. Alfred Beck (Beck) from May 18, 1991 to July 29,1991.

Kokesh purchased the property on July 29, 1991.

[¶ 3.] Running purchased the property on June 6, 1989, from Homestake Mining Company (Homestake) after farming it as tenants. The land is now owned by the Raymond T. Running Revocable Trust and the Helen D. Running Revocable Trust.

[¶ 4.] According to Dave Johnson, son of Lawrence Johnson, who grew up on the property while owned by his parents, his father used the road in question on a daily basis beginning in 1944. Johnson used the road for accessing the home and the parking area and hauling materials for the construction of various outbuildings, garages, and a fuel storage tank. Johnson testified his father never received permission from Homestake to use the road nor to his knowledge, did his father ask permission to use the road. Furthermore, Homestake did not place any signs or restrictions on the use of the road.

[¶ 5.] Sometime between 1962 and 1965, Lawrence and Dave Johnson hauled in a garage and faced its opening to the north where the only entry was by the access road in dispute. Additionally, Johnson removed a fence, built a camper pad on the west side of the garage and used the access road to haul the needed materials, including delivery of the cement by the cement truck. Sometime during this period, an asphalt pad next to the garage was also constructed.

[¶ 6.] When Schmidt moved onto the property in 1987, he used the road on a few occasions for that move and cleaning tree trimmings from the yard. Dr. Schmidt testified that he believed there was never any question of using the driveway for access to his garage and thus, never sought permission from Running to use the driveway. Schmidt lived on the property for four years until it was sold to Beck.

[¶ 7.] The next owner of the property, Beck, had a working relationship with Kokesh. Kokesh testified that on several occasions he used the road to haul materials for Beck’s greenhouse, which was located behind the rear garage. He also used the road to haul his sister’s car into the garage to be repaired. In 1991, Kokesh purchased the property from Beck and has resided there since.

[¶ 8.] During the ownership of the property by Kokesh, the access road was routinely used for various reasons. Uses included hauling materials for the greenhouse, gardening equipment, supplies, removing garden debris, hauling trash from the neighbor’s yard, parking RV’s on their property, and for winter activities like snowmobiling. Furthermore, the local fire department, ambulance, morticians, UPS, Federal Express, and City of Spearfish have used the road continually over the years.

[¶ 9.] In 1998, there arose a dispute over a payment between Running and Kokesh concerning the care of Running’s wife at the Kokesh Rest Home. Following this dispute, Running fenced the south boundary of his property, cutting off the use of the road by Kokesh to access the north garage and adjacent areas. Kokesh then brought an action seeking to obtain a permanent easement over the access road on Running’s property. The trial court granted Kokesh the requested permanent easement, finding that an easement by prescription existed. In its decision, the trial court found that the use of the road was “open, visible, continuous and unmolested for more than twenty years, such time period beginning as early as 1944 and continuing until [Kokesh was] prevented from using the driveway ... in 1998.” Running appeals this decision and raises the following issues for review:

1. Whether the trial court erred in granting an easement in favor of Kokesh and against Running.
2. Whether the trial court erroneously entered judgment against the wrong Defendants.

STANDARD OF REVIEW

[¶ 10.] We review the circuit court’s findings of fact under the clearly erroneous standard. New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (citing In re Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139)). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id. “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994) (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)). Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the trial court erred in granting an easement in favor of Kokesh and against Running.

[¶ 12.] Easements may be created by written grants, pursuant to a plat or by force of law. Knight v. Madison, 2001 SD 120, ¶ 6, 634 N.W.2d 540, 542; Cleveland v. Tinaglia, 1998 SD 91, ¶ 18, 582 N.W.2d 720, 724; Tan Corp. v. Johnson, 1996 SD 128, ¶ 13, 555 N.W.2d 613, 616. If created by an express grant, its terms are controlled by the words of that grant, its physical size and nature of use. Who may use the easement cannot expand or enlarge it beyond the express terms of the grant of the easement. Knight, 2001 SD ¶ 6, 634 N.W.2d at 542 (citing Townsend v. Yankton Super 8 Motel, 371 N.W.2d 162, 165-6 (S.D.1985)). However, in an action concerning an easement by prescription, the existence and nature of the easement require a fact intensive review of past use together with an application of applicable statutes on the subject.

[¶ 13.] SDCL 15-3-1 provides:

No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.

Kokesh must prove open, visible, continuous and unmolested use of the property for twenty (20) years. Kougl v. Curry, 73 S.D. 427, 432, 44 N.W.2d 114, 117 (S.D.1950) (additional citations omitted). Once this is shown, the use will be presumed to be under a claim of right. Id. “The owner of the servient estate, in order to avoid the acquisition of an easement by prescription, has the burden of rebutting this presumption by showing that the use was permissive.” Id. The burden, therefore, was on Running to show that the use was permissive.

[¶ 14.] The trial court found that Kok-esh and his predecessors’-in-interest use of Running’s property was open, visible, continuous and unmolested for more than twenty (20) years. This time period began running as early as 1944 and continued until Running installed the fence, blocking Kokesh’s access to the road. The trial court also determined that the road was used without permission and under claim of right, adverse to the interest of Running.

[¶ 15.] In Tan Corp., we held that a real property owner’s personal knowledge of a curb cut, an improved driveway, traffic flow thereon and his acquiescence thereto per SDCL 17-1-4, charged that owner with constructive notice that the realty was burdened by an easement for ingress and egress to adjoining properties. 1996 SD 128, ¶¶ 16-17, 555 N.W.2d at 617. Moreover, we held that such obvious physical creations as the curb cuts and improved driveway per SDCL 17-1-4 placed upon the owner the duty of reasonable diligence as to the possibility of an easement and the extent and any limitations thereon. Id.

[¶ 16.] Herein, there is ample support in the record to support the trial court’s findings. From 1944 to 1987, Johnson used the road daily without permission for farm purposes. The use of the road is further evidenced by the construction of a garage on the north edge of his property, with the only entrance facing the disputed road. Johnson additionally ripped out a fence, constructed an asphalt pad next to the garage and kept a fuel storage tank in the area. Neither Homestake nor Running objected to Johnson’s use of the driveway area or his obvious intent to use the driveway to gain access to his garage. The record supports the trial court’s conclusion that this use was under claim of right and adverse to Running’s ownership of the property. The following use of the disputed road by subsequent owners, Schmidt, Beck, and Kokesh, was also used without the permission of Running. The evidence supports that these owners used the road whenever they wanted as a matter of right.

[¶ 17.] Running argues that the use of the road was permissive and not adverse. However, the trial court found, and we agree that Homestake or Running never gave permission for anyone to use the road. The record clearly establishes the trial court did not err when it found that no permission was ever sought or given by Running to use the road. Likewise, Running did not meet his burden in showing the use was permissive.

[¶ 18.] 2. Whether the trial court erroneously entered judgment against the wrong Defendants.

[¶ 19.] Running argues that because the property in question is now owned by the their trusts, the trial court erred when it entered judgment against Ray and Helen Running. However, throughout the proceedings, including the trial, Running referred to the property as his property and the road as his road. It is well-settled law that “[h]e cannot now assert a better version of the facts than his prior testimony.” Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 16, 557 N.W.2d 764, 768; see also Turner v. Weber, 2001 SD 125, ¶ 14, 635 N.W.2d 587, 592; Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 36, 606 N.W.2d 919, 926. Furthermore, once an easement by prescription is established, it runs with the land, passing with successive owners. SDCL 43-25-30; Peterson v. Beck, 537 N.W.2d 375, 378 (S.D.1995). Therefore, we find that this argument is without merit. For the foregoing reasons, we affirm the judgment.

[¶ 20.] SABERS, AMUNDSON, KONENKAMP and ZINTER, Justices, concur.

      . In Knight, the holder of an easement for ingress and egress to his property over a privately owned road constructed a gate to attempt to limit public access for the use of the private road. 2001 SD 120, ¶ 2, 634 N.W.2d at 542. The owner of the road being put on at least constructive notice of the existence of the gate, contested the right of an easement holder to so regulate access to the road. We held that the easement holder acquired no rights to regulate access by third parties to the private road and that authority rested exclusively with the landowner as he had retained that right. 2001 SD 120, ¶ 8, 634 N.W.2d at 543.

      . Although Schmidt’s use of the road was infrequent, the trial court found that he used it whenever needed and without the permission of Running. Furthermore, Schmidt’s minimal use of the road is irrelevant because Johnson’s use of the road from 1944 to 1987 fulfilled the statutory time period to create a prescriptive easement.

      . It appears from the facts that use of the strip was not limited to Kokesh and predecessors. Apparently it was used by numerous others as access to the Kokesh garage and property. While ordinarily such unlimited use could be subject to challenge as in excess of an easement, here Running did not seek upon appeal to this Court to limit the terms of the easement to the property owners and no one else. Thus, we are not called upon to determine if use of the land is limited to the property owner Kokesh or is extended to their invitees or the public at large. That portion of the trial court's decision as to the nature of the use is not subject to our review and the trial court’s decision on that point becomes final.


text:
    2002 SD 124
    STATE of South Dakota, Plaintiff and Appellee, v. Anselem H. RUMPCA, Defendant and Appellant.
    No. 22154.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Oct. 09, 2002.

      Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Patricia de Hueck of de Hueck Law Firm, Pierre, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Anselem Rumpca appeals from a judgment finding him guilty of trespass-hunting without permission in violation of SDCL 41-9-1. We affirm.

FACTS

[¶ 2.] John Weber is a rancher who lives in rural Draper in Jones County, South Dakota. At 4:30 in the afternoon on October 29, 2000 he saw Rumpca and his son Aaron hunting on the east side of the road adjacent to land he owned. He watched as “they stopped and got out of the pickup and run [sic] up to shoot and shot approximately 75 feet into on [sic] my land.” The pheasants were getting up on his land, not on the road right-of-way. Weber was sure that Rumpca shot at the birds over his land. He had not given him permission to do so.

[¶ 3.] Rumpca told a different version of events. He and his son saw a half dozen birds in the east side ditch. He stopped, jumped out, and fired one shot at a bird that “jumped up” from the ditch. Rumpca thought he had missed the pheasant until he saw it collapse 50 yards into the pasture. He took his six-month-old pup to retrieve the bird.

[¶ 4.] The court trial took place on December 19, 2000 and April 10, 2001. Weber and Rumpca testified both days. The court filed a letter decision finding Rump-ca guilty of trespass hunting without permission. SDCL 41-9-1. It asked the State to submit findings of fact, conclusions of law and a proposed judgment. Rumpca was told to respond with objections, if any, and to submit his own proposed findings, conclusions and judgment. Both parties did so. The court rejected each parties’ proposals and entered its own findings.

ISSUE

[¶ 5.] Did the trial court err in finding Rumpca guilty, beyond a reasonable doubt, of trespass-hunting without permission in violation of SDCL 49-9-1? DISCUSSION

[¶ 6.] Rumpca contends that the trial court was clearly erroneous in finding that he shot the bird while it was flying over Weber’s land. This finding, he submits, was based on Weber’s testimony and Weber “is less than credible.”

[¶ 7.] Rumpca’s contention fails for two reasons. First, the trial court is in the best position to assess the credibility of witnesses, weigh conflicting evidence, and observe both first hand. State v. Rinehart, 2000 SD 135, 617 N.W.2d 842. These are not matters for a reviewing court. State v. Frazier, 2001 SD 19, 622 N.W.2d 246.

[¶ 8.] Second, written findings of fact and conclusions of law are not required in criminal cases. State v. Means, 268 N.W.2d 802 (S.D.1978). A finding of guilt by a judge, sitting without a jury, necessarily includes a finding that the state has proved each material element of a crime beyond a reasonable doubt. State v. Bartunek, 323 N.W.2d 121 (S.D.1982). “Therefore, the clearly erroneous rule as pertains to a trial court’s finding of guilt does not come under consideration.” Id., 323 N.W.2d at 126.

[¶ 9.] Rumpca also contends that, even if he did shoot the bird while he was in the right-of-way and the bird was over Weber’s land, casting shot over private land from a public roadway is not trespass.

[¶ 10.] SDCL 41-9-1 provides:

Except as provided in § 41-9-2, no person may fish, hunt or trap upon any private land not his own or in his possession without permission from the owner or lessee of such land. A violation of this section is a Class 2 misdemeanor and is subject to § 41-9-8.

Hunt (or hunting) is defined as including “shooting, shooting at, pursuing, taking, attempting to take, catching or killing any wild animal or animals.” SDCL 41-1-1(14). Thus shooting or shooting at a pheasant flying over private property constitutes hunting and is prohibited under SDCL 41-9-1 unless the hunter owns or possesses the land or has the permission of the owner or lessee.

[¶ 11.] By shooting at a bird flying over Weber’s land Rumpca was engaged in hunting, violated SDCL 41-9-1, and entered Weber’s private property. One of the consequences of that action is the revocation of hunting privileges for a year. SDCL 41-9-8 provides:

Any person who knowingly enters or remains on private property for the purpose of hunting, fishing or trapping in violation of § 41-9-1 or 41-9-2, shall have his hunting, trapping or fishing privileges revoked for one year following such conviction. If the person is the holder of a license to hunt, trap or fish, the court shall require the license holder to surrender and deliver the license to the court to be returned to the Department of Game, Fish and Parks. For the purpose of this section, the term “guilty” has the same meaning as the term “conviction” in § 32-12-53.
Unarmed retrieval of lawfully taken small game from either private land or land controlled by the Department of Game, Fish and Parks or other public lands, is not a crime or petty offense, provided that such retrieval of small game does not involve the use of a motor vehicle.
This section may not be construed to limit the civil remedies available to any landowner.

[¶ 12.] SDCL 41-9-8 does allow for the unarmed retrieval of lawfully taken small game from private land. The South Dakota Attorney General has observed that:

It is important, however, to note that when a person relies on a statutory justification for trespass, he must bring himself fully within its terms. 87 CJS Trespass § 53. If a hunter expects to enjoy the statutorily created exception to trespass he must comply strictly with the terms. A hunter:
1. Must shoot the bird in a lawful manner, and in a lawful place.
2. Must be unarmed when he enters on private land.
3. Must be on foot.
4. Must be proceeding towards a downed game bird or small game animal.
Unarmed retrieval is a very narrow affirmative defense for trespass. Any hunter who does not meet the criteria listed above would have no statutory justification for entering private property. Hunters may not shoot game on private property from a road ditch or public property and then proceed on that private property to retrieve the game unlawfully taken. Neither may hunters enter private property under the pretext of looking for downed game in an effort to flush wild game from private property to a public right of way or public hunting area. Hunters must be very careful and responsible in exercising this limited privilege that SDCL 41-9-8 now provides.

1981 OpAtt’yGen 36 at 88 (emphasis added). While attorney general opinions are not binding on the court, they can be considered in construing statutes. Simpson v. Tobin, 367 N.W.2d 757 (S.D.1985). In the case of SDCL 41-9-8, it is persuasive.

[¶ 13.] By shooting at a pheasant over Weber’s land Rumpca violated SDCL 41-9-1. Because the pheasant was not taken in a lawful manner, revocation of his hunting license was proper under SDCL 41-9-8.

[¶ 14.] The judgment is affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and ZINTER, Justices, participating.

      . A pheasant is a wild animal. SDCL 41 — 1— 1(28).

      . This conclusion under South Dakota law is consistent with the Restatement (Second) of Torts § 158(a) and § 159(1). Under the law of trespass one is subject to liability if he intentionally enters the land in the possession of another, or causes a thing or third person to do so. § 158(a). Additionally, a trespass may be committed on, beneath, or above the surface of the earth with exceptions for flight by aircraft. § 159(1). Consequently, a hunter hunting birds on a public pond who fires a shot across private land which lands into another public body of water is guilty of trespass. Illustration 4, § 159(1). See Illustration 6, § 159(a).

      .A pheasant is small game. SDCL 41 — 1— 1(24).


author: MILLER, J.

text:
    Karen M. HANSON and Maylon J. Hanson, Plaintiff-Appellant, v. HARVEYS CASINO HOTEL, Defendant-Appellee.
    No. 01-1195.
    Court of Appeals of Iowa.
    July 31, 2002.
    Joseph Colaiano and Donald Swanson, Omaha, Nebraska, for appellant.
    Michael Kinney and James Garriott, Omaha, Nebraska, for appellee.
    Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
   MILLER, J.

Karen M. Hanson and Maylon J. Hanson appeal from the trial court’s grant of Harveys Casino Hotel’s motion for new trial. They also contend the court erred in not permitting evidence on the issue of farm expenses incurred by Karen Hanson. We dismiss the appeal and remand for new trial as ordered by the trial court.

On July 25, 1998 Karen Hanson was a customer at Harveys Casino Hotel (the Hotel) in Council Bluffs, Iowa. At approximately 4:30 a.m., Karen was walking through the casino towards the bar in a permitted customer area. She proceeded down an aisle of slot machines where Edgardo Escobar, an employee of the Hotel, was servicing a slot machine within the scope of his employment. As Karen passed Mr. Escobar, he allegedly stood up from a kneeling position and in turning his body bumped Karen in the area of her left breast. In 1995 Karen had undergone a double mastectomy and reconstructive surgery, which included breast implants in both breasts. After the accident Karen sought treatment with numerous physicians concerning pain in her left breast she attributed to the incident at the Hotel.

Karen and her husband Maylon brought suit against the Hotel for damages due to the alleged negligence of the Hotel’s employee, Mr. Escobar. Karen alleged Mr. Escobar’s negligence in bumping her in the breast proximately caused her to sustain an injury and subsequent damages. Maylon claimed the negligence impaired and disabled Karen so as to deprive him of her aid, services, support, affection, society and companionship. The case was tried to a jury. The jury returned a verdict in favor of the Hansons, awarding Karen $75,000 and Maylon $6500. The Hotel filed motions for judgment notwithstanding the verdict and for new trial. The court granted the Hotel’s motion for new trial on four separate grounds. One of the four, dealing with evidentiary matters, itself contained three separate and distinct grounds. The Hansons appeal from the trial court’s ruling alleging the court erred in granting new trial and in not allowing them to present evidence on the issue of farm expenses incurred by them due to Karen’s injury.

The Iowa Rules of Appellate Procedure govern the form and content for briefs and appendixes filed with our supreme court. See generally Iowa Rs.App. P. 6.14 and 6.15. Failure to comply with these rules can lead to summary disposition of an appeal. Iowa R.App. P. 6.19(1); Myers v. Sellers, 234 N.W.2d 152, 153 (Iowa 1975); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 239 (Iowa 1974). We are not bound to consider a party’s position when the brief fails to comply with our rules of appellate procedure. Inghram, 215 N.W.2d at 239-40.

Iowa Rule of Appellate Procedure 6.14(l)(f) requires:

Each division of the argument shall begin with a discussion, citing relevant authority, concerning the scope or standard of appellate review (e.g. “on error,” “abuse of discretion,” “de novo,”) and shall state how the issue was preserved for review, with references to the places in the record where the issue was raised and decided.

(Emphasis added). Rule 6.14(7) requires:

“References in the final briefs to portions of the record shall be to the pages of the appendix at which those parts appear.”

(Emphasis added). Rule 6.15(l)(a) requires:

Appellant shall prepare and file an appendix to the briefs which shall contain: ... (2) any relevant portions of the pleadings, transcript, instructions, findings, conclusions, and opinion; ... and (6) any other parts of the record to which the parties wish to direct the particular attention of the court.

(Emphasis added). Rule 6.19(1) provides in part:

An appeal may be dismissed, with or without notice of default, for failure to comply with an appellate rule, upon the motion of a party or of the appropriate appellate court.

The Hansons’ brief and appendix fail to comply with the foregoing rules. Although the division of their brief dealing with the grant of a new trial contains a lengthy quotation setting forth principles that apply to the trial court’s consideration of a motion for a new trial when discretionary grounds for new trial are invoked by a party, it contains no discussion concerning the scope or standard of appellate review'. The division dealing with the issue of evidence of farm expenses contains no discussion of, and no citation of authority concerning, the scope or standard of appellate review. Some two-thirds of the references to the record in the Hansons’ brief are not references to pages of the appendix. The appendix contains less than one-half of the portions of the record referred to in the Hansons’ brief. Further, the argument portion of the Hansons’ brief contains and relies on numerous additional matters allegedly appearing in the trial record, but does so without either including them in the appendix or even indicating where in the record they appear. Finally, concerning their claim of trial court error on the issue of evidence of farm expenses, the Hansons have not included in the appendix any portion of trial testimony to which they refer in their brief, and have not included in the appendix any trial court ruling or rulings that deal with the issue.

In some situations our appellate courts have taken the time and made the effort necessary to decide an appeal despite the failure of the appellant to comply with applicable rules of appellate procedure. See State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999) (reaching the merits despite appellant’s omissions where it was clear the issues had been raised and ruled on by the trial court, the scope of review was well-settled, and the court could reach the merits without having to undertake appellant’s research and advocacy or assume a partisan role); In re Estate of DeTar, 572 N.W.2d 178, 180-81 (Iowa Ct.App.1997) (reaching merits as to some issues as a matter of grace where the court believed it could do so without assuming -a partisan role and undertaking appellant’s research and advocacy): Where a party’s failure to comply with the appellate rules requires the court to assume a partisan role and undertake a party’s research and advocacy, we will dismiss the appeal. Stoen, 596 N:W.2d at 504; Inghram, 215 N.W.2d at 240. Subsequent to Inghram our supreme court has, however, dismissed appeals for substantial failure to comply with the rules of appellate procedure, even without any finding or suggestion that the failures required the court to assume a partisan role or engage in a party’s research or advocacy. See, e.g., Myers, 234 N.W.2d at 153.

The Hansons’ substantial lack of compliance with our rules of appellate procedure would require us to research and cull the record to identify portions of the record the Hansons should have but did not include in the appendix. Doing so would be particularly difficult and time consuming as to the several portions of the record that they refer to in their brief and rely on but do not include in the appendix or even identify by location in the record.

We receive only one copy of the record on appeal. Our rules require the appellant to include any relevant portions in the appendix, and require the parties’ briefs to cite pertinent parts of the record by reference to pages in the appendix. In order to address the merits of an appeal when an appellant largely fails in these matters would require us to search to record to locate the portions of the record that should be in the appendix, correlate those items to the appellant’s brief, and reproduce and distribute them to judges and staff. These are tasks that are required of the parties by our rules. They are tasks that the parties can perform with relative ease and dispatch because of their familiarity with the issues and the record, but which require much greater time and effort if performed by the court. Our heavy caseload does not provide us with the time to perform those tasks that the parties can perform much more efficiently' and the rules require them to perform so that we have time to address the merits, rather than the mechanics, of appeals.

In summary, the Hansons’ failure to comply with the rules of appellate procedure would require us to research and cull the record on their behalf in order to be able to address the merits of their appeal. Further, our caseload is such that we do not have the time to undertake those tasks which for reasons of efficiency the rules assign to the Hansons. We therefore decline to address the merits of the appeal. The appeal is dismissed pursuant to rule of appellate procedure 6.19(1) and the case is remanded for new trial as ordered by the trial court.

APPEAL DISMISSED.


author: VOGEL, P.J.

text:
    STATE of Iowa, Appellee, v. Michael Terry WILLIAMS, Appellant.
    No. 01-0954.
    Court of Appeals of Iowa.
    Aug. 14, 2002.

      Maggi Moss and Jennifer Larson of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles & Gribble, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Richard J. Bennett and Doug Hammerand, Assistant Attorneys General, for appellee.
    Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
   VOGEL, P.J.

Michael Williams appeals from a district court determination that no actual conflict of interest was created by romantic relationships existing between members of the public defender’s office and the office of the county attorney. We affirm.

Background Facts and Proceedings. Michael Williams appealed his 1999 convictions for murder in the first degree and robbery in the first degree upon a number of grounds, including an allegation the trial court’s failure to inquire into a conflict of interest deprived him of his right to a fair trial and to due process of law. In State v. Williams, No. 99-0551, 2000 WL 1157832 (Iowa Ct.App. Aug.16, 2000) (Williams I), this court affirmed the district court proceedings on a number of grounds, but remanded for a “hearing and decision on the conflict of interest issue consistent with this opinion.” Rejecting Williams’s contention that the district court’s failure to conduct an inquiry into alleged conflicts of interest required an automatic reversal of his conviction, we held Williams bore the burden of demonstrating a Sixth Amendment violation by showing an actual conflict of interest existed and that such conflict had adversely affected his lawyer’s performance.

The district court was given very specific instructions upon remand:

we remand this case to the district court for a hearing to determine whether an actual conflict of interest existed by virtue of the relationships between Williams’s counsel and an assistant county attorney and between another member of the public defender’s office and the prosecutor’s office. On remand, the district court should hear evidence on and decide the following questions: (1) Did the relationships among attorneys in the county attorney’s office and the public defender’s office result in a breach of counsel’s duty to preserve Williams’s confidences and secrets? (2) Did the relationships result in a breach of counsel’s duty to exercise independent professional judgment on behalf of Williams? (3) Did counsel fail, because of the relationships, to represent Williams zealously? If the court finds there was an actual conflict of interest, the court should then decide whether the conflict actually affected the adequacy of his representation. Finally, if it is determined an actual conflict affected the adequacy of representation, the court should then determine whether Williams made a knowing and voluntary waiver of conflict-free counsel by consenting to the representation on the record.

At the hearing on limited remand it was established that Williams was arrested on July 27, 1998, and that the Cerro Gordo County Public Defender’s Office was appointed to represent him the next day. Assistant Public Defender Leslie Hult, who had become engaged to Assistant Cer-ro Gordo County Attorney Carlyle Dalen in June 1998, was assigned to Williams’s case. Susan Flander, the supervising attorney with the public defender’s office, was assigned as co-counsel. Katherine Evans, another felony defense attorney with the public defender’s office, had been married to Assistant Cerro Gordo County Attorney Gregg Rosenbladt since 1995. Although Evans was not involved with Williams’s representation, Rosenbladt was assigned as co-counsel on Williams’s prosecution, along with Assistant Attorney General Doug Hammerand.

On July 30, 1998 Hult presented Williams with a form disclosing the relationship between Evans and Rosenbladt, and Williams gave written consent to continued representation. On September 2, 1998, the public defender’s office requested an opinion from the Iowa Supreme Court Board of Professional Ethics and Conduct (the Board) as to whether the office was required to disclose either an engagement or marriage between a public defender and an assistant county attorney. On December 3, 1998 the Board issued its opinion that the relationships must be disclosed and that client consent must then be obtained. The Board further noted that “[t]his can also involve differing interests (conflict) in which event you would either have to refuse employment or resign.” (emphasis added).

The office changed its disclosure form to indicate the relationship between Hult and Dalen and presented the revised form to new clients. The revised form was not presented to existing clients, including Williams. It was not until February 22, 1999, approximately a week before his March 2 trial date, that Williams learned of the engagement from another inmate. He confronted Hult with the information during a jailhouse meeting on Friday, February 26. At that time Hult explained Dalen was not involved with Williams’s prosecution, that her loyalties lay with Williams, and that she had not and would not jeopardize his defense. She also advised Williams he could have another attorney appointed to his case, but that if he did so it was unrealistic to expect to proceed to trial as scheduled.

After Flander and/or Hult attempted but failed to visit Williams in jail the following day, Flander sent Williams a letter formally disclosing Hult and Dalen’s relationship, advising him that he needed to consider whether he wished to consent to continued representation, informing him of his options, and enclosing the revised disclosure form for his review. Williams apparently received the letter on Monday, March 1, the same day he met with Flan-der for thirty to forty-five minutes. At the end of that meeting Williams signed a consent to continued representation.

There was some dispute as to whether the potential conflict was brought to the court’s attention during a pretrial hearing on March 1 or 2. What was undisputed is that after the jury had been selected on March 2, 1999, Hammerand informed the court the Cerro Gordo County Attorney’s Office had withdrawn from the case on March 1, due to a potential conflict of interest arising from Hult and Dalen’s engagement. Hult informed the court that both her engagement to Dalen and the marriage of Evans and Rosenbladt had been disclosed to Williams, and that he had consented to continued representation. When asked if this statement was correct, Williams replied, “Yes, it is.”

After hearing on the limited remand, the district court concluded no actual conflict of interest existed, finding no evidence the alleged conflict “progressed beyond a potential conflict of interest.” The court found no evidence that either Dalen or Evans had been involved in Williams’s case or had any discussions with Hult regarding any substantive matters. It found no evidence Hult failed to exercise independent professional judgment or failed to zealously represent Williams, noting the specifics of Hult’s pretrial preparations, motions and trial performance. The court further found that, even if an actual conflict of interest had existed, Williams had made a knowing and voluntary waiver. Williams appeals.

Scope of Review. Because Williams’s claims involve his constitutional rights to counsel, our review is de novo. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000).

Proof of Adverse Effect. Williams first argues this court should not have remanded the conflict of interest issue to the district court for determination of the existence of an actual conflict. Rather, he contends we were required to find the trial court’s failure to conduct a further inquiry, when apprised of the potential conflict of interest, mandated this court’s reversal of his convictions. As the State correctly points out, Williams failed to avail himself of the appropriate method to challenge our prior holding, through rehearing and/or further review. See Iowa R.App. P. 6.28; Iowa Code § 602.4102(4) (1999).

Generally speaking, once proceden-do issued in the initial appeal, our opinion would become law of the case, binding upon not only the lower courts but upon this court in a later appeal. See State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987). A recognized exception to the law of the case doctrine occurs, however, when the controlling law has been clarified by judicial decisions following remand. United Fire and Cas. Co. v. Iowa Dist. Court for Sioux County, 612 N.W.2d 101, 103 (Iowa 2000). In light of the case law developed on the subject" after our remand to the district court, we will review the standard to be applied to conflict of interest issues.

The foundation of this type of claim is an alleged denial of an accused’s constitutional right to effective assistance of counsel. U.S. Const. Amend. VI. It is well established that to demonstrate such a claim the accused must ordinarily show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). However, under certain circumstances, such as when defense counsel is forced to represent conflicting interests over his or her own objections, effect upon the proceedings is presumed, and a resulting conviction is reversed without requiring a showing from the defendant. Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426, 437 (1978).

In Williams I we acknowledged that such an “automatic reversal” is sometimes warranted, but declined to find it warranted in Williams’s case as he had failed to object to the alleged conflict of interest. That determination was based upon language in Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346 (1980), where the United States Supreme Court held “a defendant who raised no objection [to the conflict] at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”

Shortly after our opinion in Williams I, the Iowa Supreme Court interpreted the United States Supreme Court’s holdings in Holloway, Sullivan, and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981):

[W]here the trial court knew or should have known of a particular conflict, reversal is required without a showing that the conflict adversely affected counsel’s performance, even though no objection was made at trial. This conclusion is consistent with the Supreme Court’s interpretation of Cuyler [u Sullivan] in Wood, where it said that Cuyler “mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’” Wood, 450 U.S. at 273 n. 18, 101 S.Ct. at 1104 n. 18, 67 L.Ed.2d at 231 n. 18 (emphasis added).

State v. Watson, 620 N.W.2d 233, 237-38 (Iowa 2000). Accordingly, application of the automatic reversal rule is not precluded merely because Williams failed to object at trial.

However, our supreme court further clarified that automatic reversal is not triggered every time differing interests are alleged:

If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel.

Id. at 238. The validity of this interpretation finds support in the recent United States Supreme Court case of Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Mickens, a dual-representation case, clarified that a court’s duty of inquiry is triggered only under “special circumstances,” and not by awareness of a “vague, unspecified possibility of conflict, such as that which ‘inheres in almost every instance of multiple representation.’ ” Id. at-, 122 S.Ct. at 1242, 152 L.Ed.2d at -. Mickens further clarified that proof of “an actual conflict” requires more than a showing the attorney was subject to a conflict of interest. Id. at -, 122 S.Ct. at 1243, 152 L.Ed.2d at -. Rather, the Court found the phrase “actual conflict” is merely shorthand for a conflict that actually adversely affected the attorney’s performance. Id.

Finally, in ruling that the trial court’s failure to inquire into a potential conflict of interest would not relieve the defendant from showing an actual effect upon counsel’s performance, the court noted:

automatic reversal when there existed a conflict that did not affect counsel’s performance, but the trial judge failed to make the &¿Mmro-mandated inquiry, makes little policy sense.... The trial court’s awareness of a potential conflict neither renders it more likely that counsel’s performance was significantly affected nor in any other way renders the verdict unreliable. Nor does the trial judge’s failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at the trial.
Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivan’s mandate of inquiry.... [W]e do not presume that judges are as careless or as partial as those police officers who need the incentive of the exclusionary rule. And in any event, the Sullivan standard, which requires proof of effect upon representation but (once such effect is shown) presumes prejudice, already creates an “incentive” to inquire into a potential conflict. In those cases where the potential conflict is in fact an actual one, only inquiry will enable the judge to avoid all possibility of reversal by either seeking waiver or replacing a conflicted attorney. We doubt that the deterrence of “judicial dereliction” that would be achieved by an automatic reversal rule is significantly greater.

Id. at -, 122 S.Ct. at 1244-45, 152 L.Ed.2d at-. (citations omitted).

The record in the initial appeal demonstrated the existence of relationships that could have led to divided loyalties. It did not, however, indicate whether those relationships had any actual impact upon Williams’s representation, and the district court was informed disclosure had been made and consent given. Under prevailing case law, remand for further hearing was the appropriate action.

Actual Conñict. While we agree with Williams that the public defender’s office could have and perhaps should have done a better job disclosing the potential conflicts inherent in the relationships between its own attorneys and those employed by the county attorney’s office, this appeal is not a disciplinary action. The question for our consideration is whether Hult’s performance was somehow adversely affected due to her relationship with Dalen, and/or as a product of the marriage between Evans and Rosenbladt. See Watson, 620 N.W.2d at 238. Looking to the facts of this case, as established on limited remand, we find no proof her performance was so affected.

During the course of Williams’s representation Hult, Dalen, Evans and Rosen-bladt occasionally socialized, and Hult admitted she had likely discussed the generalities of her many cases with the other attorneys. However, Hult testified no specific information regarding Williams’s case was shared, and nothing on remand contradicted this statement. Although Hult and Dalen often spent time in the same residence, Hult stated she did not generally take files or other work-related items home, and there was no evidence Dalen became privy to any confidential information. Williams could allege only that “other individuals,” which was an apparent reference to inmates, witnesses or other non-attorneys, had provided Dalen with “information” about Williams.

Williams was able to establish that the county attorney’s office took no formal precautions to insulate any confidential information, and that the public defender’s office took only the minimal precautions of assigning each public defender separate file drawers, and instituting a policy that “eases were not discussed between attorneys that would have a husband on the case.” However, Hult, Dalen and Rosen-bladt all testified that no specific, substantive or confidential information regarding Williams’s case was ever revealed or discussed and, again, nothing in the record contradicted these assertions. Finally, Hult denied her personal relationships in any way affected her performance, and this statement is borne out by testimony regarding, and the trial court’s stated observations of, Hult’s pretrial and trial performance. The only contrary evidence presented by Williams was his own testimony that he had not received effective representation because Hult and Flander failed to carry through with certain unspecified requests he had made of them.

On remand Williams demonstrated only that, if the testimony of the participating attorneys was wholly discounted, the potential existed for the exchange of confidential information. Moreover, nothing indicates Hult’s ability to exercise independent professional judgment or zealously represent Williams was negatively affected. We are not willing to impute an adverse impact from the mere existence of the relationships among counsel, as Williams apparently urges us to do. Simply stated, Williams has failed in his burden of showing an actual conflict of interest such that he would be entitled to a new trial. Having considered all the issues presented, we find the district court acted appropriately in upholding Williams’s convictions.

AFFIRMED.

      . Attached to the letter were prior ethics opinions indicating full disclosure and consent would be sufficient to resolve similar potential conflict of interest issues, but noting that withdrawal from representation would be necessary if an actual conflict of interest arose or could be reasonably foreseen. It seems clear from reading the totality of the opinions that it is not the relationships themselves, but the possible consequences flowing from the relationships under the relevant circumstances, that can create a conflict. Whether or not a conflict exists depends on the facts of each individual case. See ABA Formal Op. 340 (1974) (“No disciplinary rule expressly requires a lawyer to decline employment if a ... close relative represents the opposing party.... We cannot assume that a lawyer who is married to another lawyer necessarily will violate any particular disciplinary rule.''). We find it important to note the Board did not opine Hult had an actual conflict interest mandating withdrawal, but only that her particular situation could lead to such a conflict.

      . With varying degrees of certainty, both prosecutorial and defense counsel recalled that an informal hearing occurred off the record on either the afternoon of March 1 or the morning of March 2, that the hearing was in regard to the conflict of interest issue, and that Williams was present and questioned by the court. Williams denied that any such hearing occurred.

      . We note the Mickens court appeared critical of the "unblinking” application of the Sullivan doctrine to "all kinds of alleged attorney ethical conflicts,” observing that by its own terms Sullivan addressed only an attorney actively representing conflicting interests. Mickens, 535 U.S. at-, 122 S.Ct. at 1245, 152 L.Ed.2d at-. (citation omitted). For the purpose of this appeal, we presume Sullivan was appropriately applied in this case to require a showing of actual prejudice by Williams.


author: Paul H. Anderson, Associate Justice

text:
    Darlene F. FOLLESE (nee Hall), Respondent, v. EASTERN AIRLINES and Fidelity and Casualty Insurance Company, n/k/a CNA Commercial Insurance Company Relators, and Eastern Airlines and Employers Mutual Liability Insurance Company of Wausau, Respondents, and Special Compensation Fund.
    No. C7-02-1297.
    Supreme Court of Minnesota.
    Nov. 4, 2002.
    Jay T. Hartman, Tracy M. Borash, Hea-cox, Hartman, Mattaini, Koshmrl, Cosgriff & Johnson, St. Paul, for Employer and Insurer Relator.
    Byron L. Zotaley, Hopkins, for Employee-Respondent.
    Mike Hatch, Attorney General, State of MN, Rory H. Foley, Assistant Attorney General, St. Paul, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 10, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $600 in attorney fees.

BY THE COURT:

Paul H. Anderson, Associate Justice