author: GILBERTSON, Chief Justice.

text:
    2004 SD 2
    STATE of South Dakota, Plaintiff and Appellee, v. Damien GARBER, Defendant and Appellant.
    No. 22693.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Jan. 7, 2004.

      Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Robert Tiefenthaler, Sioux City, Iowa, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] After Damien Garber (Garber) pleaded guilty to Possession of a Controlled Substance in violation of SDCL, 22-42-5, he was sentenced to ten years in the South Dakota State Penitentiary. On appeal, Garber raises the following issues: (1) whether the right to remain silent extends through sentencing; (2) whether his sentence was grossly disproportionate; (3) whether he should be re-sentenced by a different judge; and (4) whether his attorney’s failure to advise him to remain silent during sentencing amounted to ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 21, 2002, Union County Deputy Sheriff Eric Holmquist initiated the traffic stop of the vehicle in which Garber was a passenger because it had an unlit license plate and the vehicle appeared to be operated erratically. While speaking with the driver of the vehicle, Loni Vasel-aar (Vaselaar), Deputy Holmquist noticed the smell of alcohol coming from the vehicle. Vaselaar admitted to drinking two beers. After asking Vaselaar to perform various field sobriety tests, Deputy Holm-quist asked Vaselaar to stick out his tongue. Vaselaar complied and Deputy Holmquist observed a thick, white coating on his tongue, a sign that often indicated marijuana use in the deputy’s experience. When questioned, Vaselaar admitted to smoking marijuana that afternoon but denied the presence of any marijuana in the vehicle. Deputy Holmquist subsequently placed Vaselaar under arrest for ingestion of a controlled substance.

[¶ 3.] Shortly thereafter, Deputy Mike Palmer arrived at the scene to assist Deputy Holmquist. Deputy Palmer instructed Garber to get out of the back seat and asked him if he had been drinking. Gar-ber replied that he had been drinking and that he did not have a driver’s license. Garber also admitted he was drinking when the vehicle was pulled over and that there was an open beer can in the car. When asked, Garber denied the presence of any drugs in the vehicle and stated he had not smoked marijuana.

[¶ 4.] After placing Vaselaar under arrest, Deputy Holmquist spoke with the other passenger in the car, Jonna Erickson (Erickson). Deputy Holmquist noticed the red and glassy appearance of Erickson’s eyes and smelled the odor of alcohol on her breath. When questioned, Erickson denied having anything to drink or using any type of drug. Deputy Holmquist then placed Erickson in Deputy Palmer’s patrol car.

[¶ 5.] A subsequent search of the vehicle revealed a half-full can of beer where Garber had been sitting and a partially consumed can of beer where Erickson had been sitting. Both passengers were promptly issued citations for having an open container in a motor vehicle. Erickson, who was nineteen at the time, also received a citation for underage consumption. Because Vaselaar’s vehicle was to be towed, Deputy Palmer gave Garber and Erickson a ride back to North Sioux City, South Dakota.

[¶ 6.] After Deputy Palmer, Garber, and Erickson departed, Deputy Holmquist began an inventory search of the vehicle. Upon opening the car’s trunk, Deputy Holmquist immediately noticed the odor of marijuana and identified the smell as coming from a bag filled with clothes. Deputy Holmquist found a large plastic bag under the clothing. The bag, later identified as belonging to Garber, contained large quantities of marijuana and methamphetamine. A subsequent analysis determined that the bag contained one pound of marijuana and approximately 110 grams of methamphetamine. Deputy Holmquist also discovered an electronic scale in the trunk.

[¶ 7.] Deputy Holmquist immediately radioed Deputy Palmer and directed him to place Garber and Erickson under arrest. After returning to Vaselaar’s vehicle, the deputies placed Garber in the back seat of Deputy Holmquist’s car with Vasel-aar, and placed Erickson in Deputy Palmer’s vehicle. Alone in the patrol car, Gar-ber and Vaselaar began to speak with one another. Unbeknownst to them, a microphone in Deputy Holmquist’s car recorded the conversation, including Garber’s remark that “I didn’t think they were ever going to find that,” and his observation that “You know, you can only do this so long before something happens.”

[¶ 8.] Garber, Vaselaar, and Erickson were all placed under arrest. A sample of Garber’s urine tested positive for methamphetamine. Garber was charged with two counts of Possession of a Controlled Substance in violation of SDCL 22-42-5, Possession of Marijuana contrary to SDCL 22-42-6, Ingestion pursuant to SDCL 22-42-15, Possession of Drug Paraphernalia in violation of SDCL 22-42A-3, and Open Container in a Motor Vehicle contrary to SDCL 35-1-91.

[¶ 9.] On August 26, 2002, Garber appeared before Judge McMurchie and pleaded guilty to one count of Possession of a Controlled Substance, methamphetamine.

[¶ 10.] On December 17, 2002, Garber was brought before Judge Eng for sentencing. Judge Eng told Garber he had the right to request sentencing from Judge McMurchie, but Garber indicated he wished to go forward with sentencing at that time. Judge Eng subsequently entered a judgment sentencing Garber to ten years in the South Dakota State Penitentiary.

[¶ 11.] Garber’s motion to vacate sentence and motion to transfer were denied. Garber now appeals and raises the following issues:

1. Where a Defendant has entered a plea of guilty, does that Defendant’s privilege against self-incrimination continue through the sentencing hearing.
2. Whether Garber’s sentence to ten years in the penitentiary for possession of a controlled substance was grossly disproportionate.
3. Whether Garber should be re-sentenced by a different trial judge.
4. Whether counsel’s failure to advise Garber to exercise his right to remain silent during sentencing amounted to ineffective assistance of counsel.

Affirmed.

STANDARD OF REVIEW

[¶ 12.] We review Garber’s argument that the right to remain silent, pursuant to Fifth Amendment of the Constitution and Article VI, § 9 of the South Dakota constitution, extends to sentencing under the de novo standard of review.

[¶ 13.] We give “great deference to sentencing decisions made by trial courts.” State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17 (citing State v. Gehrke, 491 N.W.2d 421, 422 (S.D.1992) (citation omitted)). As we reiterated in Milk:

Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

Id. (quoting Gehrke, 491 N.W.2d at 423). Given this level of deference, we generally uphold sentences within the statutory maximum. State v. Stahl, 2000 SD 154, ¶ 5, 619 N.W.2d 870, 871-72 (citation omitted). Accordingly, appeals attacking the proportionality of a sentence will rarely be successful. State v. Bonner, 1998 SD 30, ¶ 14, 577 N.W.2d 575, 579 (citation omitted).

ANALYSIS AND DECISION

[¶ 14.] 1. Where a Defendant has entered a plea of guilty, does that Defendant’s privilege against self-incrimination continue through the sentencing hearing.

[¶ 15.] Garber pleaded guilty to one count of Possession of Controlled Substance before Judge McMurchie and was sentenced by Judge Eng to ten years in the South Dakota State Penitentiary, the maximum penalty for violation of SDCL 22-42-5. Garber contends, however, that Judge Eng violated his Fifth Amendment right to remain silent during the sentencing hearing, and, therefore, his sentence should be overturned. We have not squarely addressed whether a defendant’s right to remain silent extends to the sentencing phase where that defendant has entered a plea of guilty.

[¶ 16.] Garber believes Judge Eng violated his Fifth Amendment right to remain silent when Judge Eng questioned him about the incident that led to his arrest. The relevant portions of the exchange follow:

THE COURT: Thank you. Mr. Gar-ber, if you’d please stand. Do you have any comments you’d like to make?
GARBER: Yes, I would like to apologize to the State of South Dakota for having possession of methamphetamine in my body. I know that was wrong. I’d like to apologize to society in general for any wrongdoing that, you know, I did or any harm that I did to any other person by having methamphetamine in my body. I know it was wrong. I feel I’m on the right path and I really want to change my life around. I think I can do that. I have the ability to do that without having to go away for however long you sentence me. I really want a chance to work this out through probation. That’s all.
THE COURT: Mr. Garber, what happened that day?
GARBER: Basically what happened is Mr. Vaselaar came over to my house. I thought we were going to go fishing. He had some meth, which we smoked.... I knew he had maybe a little in his pocket, and then we got pulled over on the way up to Sioux Falls....

[¶ 17.] At this point, Judge Eng read from the police report, including Garber’s comments “I didn’t think they were ever going to find that” and ‘You know, you can only do this for so long before something happens.” Garber, however, continued to deny his knowledge of the drugs found in the vehicle’s trunk:

THE COURT: How about the bag? Do you know anything about the bag?
GARBER: Yes, I had a Caffeine bag....
THE COURT: What’s — that’s a brand name?
GARBER: The brand is Caffeine.
THE COURT: And there were clothes in that?
GARBER: Yes, those were my clothes.
THE COURT: And underneath the clothes was a plastic bag?
GARBER: I have no knowledge of that. I didn’t put any drugs in that. If there were any drugs, it was put there without my knowledge.
THE COURT: So the bag was yours, but you know nothing about that?
GARBER: No.
THE COURT: And did you put the bag in the trunk?
GARBER: Yes, I did.... But when I left the house with the bag, there were no drugs in the bag.
THE COURT: That’s the story you want to leave with this court before I sentence you?
GARBER: Yes, that is the true and correct story.
THE COURT: Okay. Mr. Gardner, it’s the duty of this court to do many things, one of them sentencing. You know, it’s not an easy job. This court has said on more than one occasion it believes in rehabilitation. It believes people can change.... I hope you see the point that until a person comes forward and admits something, he cannot be purged of that. Now, one final time, is that the story you wish to leave with this court?
GARBER: Yes, I admit to the possession of methamphetamine in my body, sir.
THE COURT: All right. This court believes and has always that people deserve an opportunity. This court believes that our system is set up so that we have many different things and broad discretion with sentencing up to and including the maximum allowed by law. Mr. Garber, this court does not believe you. And as a consequence, this court is sentencing you to ten years in the South Dakota State Penitentiary.

[¶ 18.] Garber contends Judge Eng’s question “what happened that day?” and all further inquiries after he exercised his right of allocution, pursuant to SDCL 23A-27-1, violated his Fifth Amendment right to remain silent during sentencing. In support of his proposition, Garber cites Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), a case involving a woman’s guilty plea for conspiracy to distribute cocaine. At sentencing, the federal district court ruled the defendant did not have the right to remain silent and that it could draw adverse inferences from her silence. Id. at 318-19, 119 S.Ct. at 1310-11. The Court of Appeals for the Third Circuit affirmed the sentence. Id.

[¶ 19.] On appeal, the Supreme Court reversed and specifically rejected the argument that a defendant’s guilty plea waives the right to remain silent at sentencing. Id. at 325, 119 S.Ct. at 1313. See also Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (“Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.”). In addition, the Supreme Court held that a sentencing court could not draw adverse inferences from a defendant’s exercise of the right to remain silent at sentencing. Mitchell, 526 U.S. at 329-30, 119 S.Ct. at 1315-16.

[¶20.] In the opinion, the Supreme Court once again reiterated its belief that incrimination does not end “once guilt has been adjudicated.” Id. at 325, 119 S.Ct. at 1313; see Estelle, 451 U.S. at 462, 101 S.Ct. at 1872. The Court explained its holding by reasoning:

As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important.

Mitchell, 526 U.S. at 327, 119 S.Ct. at 1314. See United States v. Preciado, 336 F.3d 739, 746 (8th Cir.2003) (affirming a district court’s decision to allow defendants to remain silent at sentencing because “[a] defendant’s role in the offense is always relevant at sentencing.”).

[¶ 21.] Consistent with other jurisprudence concerning the right to remain silent, however, the Mitchell Court held this right can be waived and, once waiver occurs, the right cannot be automatically re-invoked:

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 95 L.Ed. 344 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the ‘wavier is determined by the scope of relevant cross-examination.’ Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

Mitchell, 526 U.S. at 321, 119 S.Ct. at 1311-12, 143 L.Ed.2d at 433. Waiver also allows questioning of the defendant to preclude “an invitation to mutilate the truth a party offers to tell.” Id. at 322, 119 S.Ct. 1307.

[¶ 22.] Although Mitchell involved a guilty plea in federal court, a number of states courts have adopted its reasoning. See State v. Worthington, 8 S.W.3d 83, 92 (Mo.1999); State v. Shreves, 60 P.3d 991, 996, 313 Mont. 252, 260 (2002); Com. v. Freeman, 827 A.2d 385, 410, 573 Pa. 532 (2003); Com. v. Mills, 764 N.E.2d 854, 866, 436 Mass. 387, 401 (2002); Martin v. Flanagan, 789 A.2d 979, 985, 259 Conn. 487, 497 (2002); State v. Merchant, 790 A.2d 386, 393, 173 Vt. 249, 258 (2001). We agree with the underlying rational of Mitchell and hold that a defendant’s Fifth Amendment right to remain silent at sentencing is not waived by entering a guilty plea in South Dakota state court. We also recognize that it would be error to draw adverse inferences from a defendant’s exercise of that right at sentencing.

[¶ 23.] In this case, however, Gar-ber waived his right to remain silent both legally and factually. We have long recognized that “[t]his privilege of silence is for the benefit of the witness and is deemed waived unless invoked.” State v. Dilworth, 83 S.D. 363, 366, 159 N.W.2d 795, 796 (1968). As the United States Supreme Court acknowledged in United States v. Monia:

The Fifth Amendment declares that ‘No person ... shall be compelled in any criminal Case to be a witness against himself.’ [T]he amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been ‘compelled’ within the meaning of the Amendment.

317 U.S. 424, 427, 63 S.Ct. 409, 410-11, 87 L.Ed. 376 (1943); see Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1984).

[¶ 24.] The record clearly indicates that neither Garber nor his attorney affirmatively asserted the right to remain silent at the sentencing hearing. Nor did Garber or his attorney object to any of Judge Eng’s questions during the hearing. When offered the chance to do so by the trial court, Garber voluntarily took the opportunity to speak on his own behalf. He told a version of the facts including his lack of knowledge of the drugs in his own clothes bag, which justified the trial court in essence finding he “mutilated the truth.” There is no constitutional right to lie. This is especially appropriate concerning a subject which the defendant has voluntarily brought up to the court. It was Gar-ber’s lack of candor which prejudiced him, not the exercise of his opportunity to speak on his own behalf. As such, under Mitchell, Garber has no grounds for a valid complaint concerning his proceedings.

[¶ 25.] Normally, this Court declines to review issues not presented to a trial court, and “[e]ven fundamental rights can be waived.” State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763 (citation omitted). Therefore, we hold Garber waived his Fifth Amendment right to remain silent during sentencing when he failed to assert that right, voluntarily testified to a subject and then failed to object to Judge Eng’s questions. We also decline to extend plain error analysis to Garber’s case.

[¶ 26.] 2. Whether Garber’s sentence to ten years in the penitentiary for possession of a controlled substance was grossly disproportionate.

[¶ 27.] Garber next argues his sentence to ten years in the South Dakota State Penitentiary for Possession of a Controlled Substance was grossly disproportionate and should be reversed as cruel and unusual punishment in violation of the Eighth Amendment. In support of his argument, Garber points out that his co-defendants, Vaselaar and Erickson, received more lenient sentences. Judge Eng sentenced Vaselaar to ten years probation and ninety days in jail, while he allowed Erickson, who was pregnant at the time, to remain free on bond and continued her sentencing until after the birth of her child.

[¶ 28.] It is well-settled that we employ very limited principles in our constitutional review of sentences. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d at 18. These principles include giving “substantial deference to the legislature’s broad authority to determine the types and limits of punishment” and the notion that “the Eighth Amendment does not mandate adoption of any one penological theory.” Id. (citing State v. Hinger, 1999 SD 91, ¶ 16, 600 N.W.2d 542, 547 (citations omitted)). Given these principles, we rarely disturb sentences within the statutory maximum. Stahl, 2000 SD 154, ¶ 5, 619 N.W.2d at 872.

[¶ 29.] In Bonner, we outlined the test we will employ in reviewing the proportionality of a given sentence:

[ T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solem factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense.

1998 SD 30, ¶ 17, 577 N.W.2d at 580 (citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)).

[¶ 30.] Garber pleaded guilty and was sentenced to ten years in the South Dakota State Penitentiary for violating SDCL 22-42-5. Ten years imprisonment is the maximum penalty allowed under SDCL 22-42-5. As we recognized in Milk, a sentencing court “should acquire a thorough acquaintance with the character and history of the man before it.” 2000 SD 28, ¶ 16, 607 N.W.2d at 19. Judge Eng based his sentencing decision on the pre-sentence report, police reports, and Garber’s comments during the sentencing hearing.

[¶ 31.] Here, we recognize that Garber has no prior felony convictions. The record indicates, however, that Garber’s connection to the drug underworld was extensive. Garber admitted to a long history of drug abuse, including methamphetamine, cocaine, marijuana, ecstasy, and LSD. The fact that Garber’s bag contained a large quantity of drugs, one pound of marijuana and 110 grams of methamphetamine, was also relevant. In addition, Garber’s own statement made while in the back of a patrol car that “you can only do this so long before something happens” suggests that he had a major involvement with illegal drugs.

[¶ 32.] In his brief, Garber does not dispute the level of his drug use or involvement in drug related activities. Rather, Garber’s sole basis to challenge the proportionality of his sentence is based on the fact that Vaselaar and Erickson received much less severe sentences. For support, Garber cites Bonner for the proposition that “[rjarely will disparity be so immediate, when accomplices sentenced for the same offense receive diametrically opposite punishments.” 1998 SD 30, ¶ 18, 577 N.W.2d at 580. Garber, however, has failed to show that his and Vaselaar and Erickson’s “past records, demeanor, degree of criminal involvement, etc., are sufficiently similar as to cause the sentence disparity between them to be unjust.” Id., ¶ 20. Without this showing, “we must defer to the trial judge’s discretion.” Id.

[¶ 33.] Furthermore, we believe the fact that Judge Eng sentenced all three defendants, Garber, Vaselaar, and Erickson, is important. As the sentencing judge, Judge Eng had the opportunity to personally evaluate the relative character, demeanor, and truthfulness of each defendant. In addition, Judge Eng was able to gauge the relative culpability of each defendant. Although each defendant pleaded guilty to the same offense, we have never held that the level of culpability for an- offense is always the same for each defendant. Since the drugs were found in his bag, there was an evidentiary basis to conclude Garber was the ringleader. The amount of illegal drugs was large and, when found with a scale, indicates that Garber was a drug dealer in addition to being a drug user. Finally there is his lack of truthfulness. It is entirely permissible for a sentencing judge to consider the truthfulness of a defendant, and here Judge Eng simply did not believe Garber’s version of the events leading-to his arrest. State v. Murphy, 506 N.W.2d 130, 133 (S.D.1993).

[¶ 34.] Garber’s sentence was within the maximum allowed by the state legislature. Judge Eng, after having the opportunity to personally evaluate Garber’s character and history, chose to give Gar-ber the maximum sentence for his crime. After a review of the record and Garber’s arguments, he has not established that his sentence is grossly disproportionate. We therefore affirm his sentence.

[¶ 35.] 3. Whether Garber should be re-sentenced by a different trial judge.

[¶ 36.] Because of our holding under Issues 1 and 2, it is not necessary to address this issue.

[¶ 37.] 4. Whether counsel’s failure to advise Garber to exercise his right to remain silent during sentencing amounted to ineffective assistance of counsel.

[¶ 38.] This Court has “consistently held that claims of ineffective assistance of counsel generally will not be considered on direct appeal.” State v. Hoefb, 1999 SD 24, ¶ 25, 594 N.W.2d 323, 328 (citing State v. McGill, 536 N.W.2d 89, 94 (S.D.1995); State v. Petersen 515 N.W.2d 687, 688 (S.D.1994); State v. Sonen, 492 N.W.2d 303, 304 (S.D.1992); State v. Wurtz, 436 N.W.2d 839, 842 (S.D.1989)). We therefore decline to address this particular claim at this time.

[IT 39.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Between Garber's guilty plea and sentencing hearing, Judge McMurchie was reassigned to a different part of the circuit. Consequently, Judge Bng obtained Garber's case on his docket.

      . SDCL 23A-27-1 provides, in pertinent part: Before imposing a sentence, a court may order a hearing in mitigation or aggravation of punishment. At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.


source: Caselaw Access Project

author: MEIERHENRY, Justice. SABERS, Justice

license: Public Domain

text:
    2004 SD 4
    Jennifer CANTALOPE and James Cantalope, Plaintiffs and Appellees, v. VETERANS OF FOREIGN WARS CLUB (“VFW”) OF EUREKA, South Dakota, Defendant and Appellant.
    Nos. 22710, 22716.
    Supreme Court of South Dakota.
    Argued Oct. 8, 2003.
    Decided Jan. 07, 2004.
    Rehearing Denied Feb. 17, 2004

      Kimberly Dorsett, Harvey Oliver, Aberdeen, South Dakota, Attorneys for plaintiffs and appellees.
    Drew C. Johnson, Aberdeen, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Jennifer, employed with her husband James (Cantalopes) as bartenders/managers of the Veterans of Foreign Wars (VFW) facility, had an asthmatic episode at work resulting in injury to her lungs. Jennifer sought worker’s compensation benefits for her injury by proceeding against the VFW in circuit court since VFW carried no worker’s compensation insurance. The circuit court found in favor of Jennifer and awarded her temporary total disability and permanent partial disability benefits. Jennifer and James also brought suit to recover for overtime hours they claim to have worked during their VFW employment. The circuit court ruled against Cantalopes finding that VFW did not have constructive knowledge of the overtime hours. VFW appeals the worker’s compensation award; Cantalopes appeal the trial court’s ruling on the overtime claims. We affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] VFW hired Cantalopes for “the managing job” for 80 hours a week. It was expected that one of them would be on the premises during all business hours. Jennifer’s worker’s compensation claim is based upon an incident on the evening of September 19, 1997, when she and James were both at VFW serving customers. Customers were allowed to smoke in the establishment; however, in addition to cigarette smoke that evening there was a heavy concentration of cigar smoke in the area where Jennifer was working. Jennifer, who had been asthmatic since grade school, experienced an abrupt attack of constricted breathing and the inability to swallow. She was taken to an emergency room and hospitalized overnight. The physician diagnosed her condition as subcutaneous pneumomediastinum which is air rupturing into body tissues. Upon release her physician ordered eight weeks of bedrest. Jennifer never returned to her employment with VFW. Additionally, Cantalopes claim that VFW owes them wages under state and federal wage and hour laws for overtime pay.

[¶ 3.] Several pre-trial motions were filed. Initially the Cantalopes moved for partial summary judgment to resolve the issue of whether Jennifer’s injury was work related. VFW argued that Jennifer committed willful misconduct which precluded her eligibility for worker’s compensation. The court granted the Cantalopes’ motion for partial summary judgment ruling that Jennifer had suffered a work related injury. Jennifer, then moved for summary judgment on her worker’s compensation damages. Additionally, the Cantalopes moved for partial summary judgment on their claims for wage and hour violations. The court denied Cantal-opes’ motions finding there were genuine issues of material fact. Further, the trial court ruled that the VFW had no right to a jury trial for the worker’s compensation issues. A court trial was held to determine the issue of Jennifer’s damages, and Jennifer and James’ wage and hour claims under the Fair Labor Standards Act (FLSA). Both parties appeal raising the following issues:

ISSUES

1. Whether Jennifer was precluded from receiving worker’s compensation benefits.

2. Whether Jennifer was entitled to temporary total disability and permanent partial disability benefits.

3. Whether the VFW was entitled to a jury trial on the worker’s compensation claim.

4.Whether the trial court had sufficient evidence to remove the Can-talopes’ federal and state wage and hour claims.

DECISION

1. Whether Jennifer was precluded from receiving worker’s compensation benefits.

[¶ 4.] The issue before the Court on summary judgment was whether Jennifer was precluded from worker’s compensation benefits because of willful misconduct. Our standard of review with summary judgment has long been established. Viewing the evidence in the light most favorable to the nonmoving party, we must determine if a genuine issue of material facts exists and if not, whether the party is entitled to judgment on the merits as a matter of law. Hasse v. Fraternal Order of Eagles # 2421, 2003 SD 23, ¶ 7, 658 N.W.2d 410, 412. VFW argued two points relating to willful misconduct: (1) that Jennifer’s decision to work in a smoke-filled environment with her asthmatic condition constituted willful misconduct, and (2) that Jennifer self-inflicted her injury by smoking cigarettes.

[¶ 5.] An employee’s willful misconduct can preclude the employee from receiving worker’s compensation benefits under certain circumstances. SDCL 62-4-37. The statute provides:

No compensation shall be allowed for any injury or death due to the employees willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by statute. The burden of proof under this section shall be on the defendant employer.

Id.

[¶ 6.] In applying the statute, this Court has defined willful misconduct as “something more than ordinary negligence but less than deliberate or intentional conduct. Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Fenner v. Trimac Transp., Inc., 1996 SD 121, ¶ 9, 554 N.W.2d 485, 487 (citations omitted). “[Mjere negligence ... however great, does not constitute willful misconduct ... and will not defeat recovery of compensation by the employee or his dependents.” Id. at ¶ 30, 554 N.W.2d at 493 (Justices Konenkamp and Sabers dissenting) (citations omitted).

[¶ 7.] VFW argues Jennifer engaged in willful misconduct because she knowingly worked in a smoke-filled environment even though she understood and appreciated it could exacerbate her asthma. VFW relies on Fenner, in which this Court affirmed the denial of worker’s compensation benefits to an employee who intentionally and deliberately disregarded his physical limitations and physician’s orders. VFW argues the same reasoning should apply to the present ease.

[¶ 8.] The evidence before the trial court was that Dr. Luzier had treated Jennifer for asthma since childhood. Dr. Luzier was board certified in pediatrics in 1981 and then became a board certified allergist, immunologist and asthma specialist in 1983. Dr. Luzier testified that the severity of Jennifer’s asthma ranged from moderate to severe and was managed with medication. In the months preceding her injury, she had gained control of her asthma which consequently stabilized her air passages. Nevertheless, various triggers such as pollen, cold air, and smoke could destabilize her. She had been able to tolerate the smoke environment at the VFW prior to the incident. Jennifer’s physician of 10 years submitted an affidavit in which he stated that she could not have foreseen or predicted her asthma attack on September 19, 1997. Dr. Luzier stated:

Plaintiff Jennifer did not have a type of asthma such that her presence in a bar or around smokers would make her sick or have an attack every time. It is therefore my expert opinion that the particular asthma attack that occurred on the night in question was unpredictable and unforeseeable and therefore not something that Plaintiff Jennifer could have predicted or expected.... [I]t was something she had not encountered prior to the night in question.

Although VFW challenged his affidavit during deposition, Dr. Luzier explained his assertions and reiterated his position. Also, he stated during deposition, “I did not advise her to not work in the bar.” VFW presented no expert or other evidence which controverted the physician’s testimony.

[¶ 9.] The evidence submitted to the trial court in the form of affidavits, depositions and other records shows that Jennifer had no “conscious realization” that her injury was “probable." Id. at ¶ 9, 554 N.W.2d at 487 (citations omitted). Her physician stated that she had her asthma controlled and had been working at the bar for over a year without incident. Additionally, she was not under physician orders to refrain from working in any particular environment. Given these facts, even considered in the light most favorable to VFW, Jennifer’s conduct does “not compare to the deliberate actions required under the statute.... It is only in those instances that constitute serious, deliberate, and intentional misconduct, that the bar to benefits provided by SDCL 62-4-37 should be applied.” Phillips v. John Morrell & Co., 484 N.W.2d 527, 532 (S.D.1992). As we stated in Harden v. South Dakota Credit Union League, Inc. “[r]ecovery may not be denied merely because [employee] had a prior history of back problems.” 87 S.D. 433, 436, 209 N.W.2d 665, 666 (1973). The same can be said here that Jennifer cannot be denied benefits merely because she has a history of asthma. Moreover, this Court stated long ago “[i]n so far as the pre-existing condition is concerned we must take the employee as we find him.” Elmstrand v. G G Rug Furniture Co., 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958). The trial court did not err in ruling as a matter of law that Jennifer’s choice of employment with VFW does not bar her from benefits.

[¶ 10.] VFW next argues Jennifer’s injury was intentionally self-inflicted because she allegedly smoked cigarettes. Jennifer testified that she had not smoked. VFW presented affidavits from three of Jennifer’s neighbors who claimed they saw Jennifer smoking prior to the episode in question. VFW claims that this is a disputed material fact and should not have been disposed of on summary judgment. Nevertheless, the physician in his deposition opined that regardless of whether Jennifer was smoking, the major contributing cause of the injury was the environment at work. The deposition testimony states:

PLAINTIFF’S COUNSEL: Okay. I think I’ve already asked this, but let’s assume there is testimony and I don’t know this to be true, but I got it from [defense counsel’s] question that there may be someone who is going to say that Jennifer was smoking either that day or shortly around the time that she sustained the injury and my question again goes that even if that fact were true, assuming that to be true, would it still be your opinion that the environment at work was a major contributing cause of the injury? (emphasis added).
PHYSICIAN: Yes.

VFW’s argument fails because Jennifer’s smoking was not a material fact. Her physician’s uncontroverted opinion was that the work environment was a major contributing cause of Jennifer’s injury even assuming Jennifer had smoked. In a similar case, we held that even though the employee’s smoking was found to have caused chronic obstructive pulmonary disease, which required her to use a steroid that causes osteoporosis, the claimant was not barred from benefits when her health problems prevented her from working. Brown v. Douglas School Dist., 2002 SD 92, ¶ 19, 650 N.W.2d 264, 270. An employee does “not have to prove that the work injury was ‘the’ major contributing cause, only that it was ‘a’ major contributing cause.” Id. at ¶ 23, 650 N.W.2d at 271. Jennifer’s injury happened while at work at VFW. Her physician stated that the environment at work was a major contributing factor. VFW offered no evidence to contradict her physician’s opinion. Because there is no genuine issue of material fact, summary judgment was appropriate.

[¶ 11.] VFW also claims that Jennifer should be disqualified from receiving worker’s compensation benefits under SDCL 62-7-40 because she allegedly lied about smoking. SDCL 62-7-40 provides that in worker’s compensation proceedings “if the finder of fact determines that any person testifying in the proceeding has knowingly sworn falsely to any material fact in the proceeding, then the finder of fact may reject all of the testimony of that witness.” Id. This statute was added to the worker compensation statutes in 1995 and mirrors the maxim falsus in uno, fal-sus in omnibus. We have discussed the propriety of instructing a jury on this maxim and have held it appropriate in certain cases. State v. Rosales, 302 N.W.2d 804, 806 (S.D.1981). The statute (as does the jury instruction) allows the trier of fact to reject testimony of a witness if that witness has knowingly sworn falsely to any material fact. Id. at 806. Here, the trial judge had the discretion to reject testimony but was not required to do so. VFW relies on Hausauer v. N.D. Workers Comp. Bureau, 572 N.W.2d 426 (N.D.1997), where the court found that claimant had made a willful, false statement sufficiently material to disqualify him from receiving benefits. VFW asserts the North Dakota statute applied in Hausauer is similar to SDCL 62-7-40. We fail to see the similarity. The North Dakota statute applied in Hausauer is a criminal statute which makes it a misdemeanor for a claimant to file a false claim or to make a false statement to obtain benefits. It is dissimilar to SDCL 62-7-40 which merely allows the judge to reject all of the testimony of a witness who perjures himself by swearing falsely to a material fact. We affirm the trial court’s ruling.

2. Whether Jennifer was entitled to temporary total disability and permanent partial disability benefits, a. Entitlement to Temporary Total Disability

[¶ 12.] We review the trial court’s findings of fact under the clearly erroneous standard. Capital Motors, LLC v. Schied, 2003 SD 33, ¶ 10, 660 N.W.2d 242, 245. When reviewing findings, we will reverse, only if, after careful review of the entire record, we are definitely and firmly convinced a mistake has been made. St Luke’s Midland Reg. Med. Center v. Kennedy, 2002 SD 137, 138, 653 N.W.2d 880, 883.

[¶ 13.] At trial, Jennifer’s physician was asked if he advised her not to return to work after the injury and he said yes. When asked about the length of time Jennifer should not work, he responded, “[tjurned out to be a 2-month period of time after follow-up.” He continued, “... this is a much more significant injury than just having an asthma attack because of the collection of air, you have to be very comfortable that that’s healed completely and that she’s not at excessive risk when she goes back to a job environment of having this reoccur. So she has to have a lot of airway stability, and that healing process usually takes 2 to 3 months to take place.” The physicians testimony was un-controverted and therefore the calculations accepted by the trial court based on SDCL 62-4-3 are not clearly erroneous. The award of temporary total disability is affirmed.

b. Entitlement to Permanent Partial Disability

[¶ 14.] Jennifer claimed permanent partial disability under SDCL 62-4-6(24) which allows compensation for permanent partial disability. In order to compute the statutory compensation allowed, a claimant must be evaluated and given an impairment rating. Such rating shall be expressed as a percentage to the affected body part, using the Guides to the Evaluation of Permanent Impairment established by the American Medical Association, fourth edition, June 1993 (Guides). SDCL 62-1-1.2. There is a disclaimer in the Guides explaining that not all questions can be directly answered because of the variables involved in medical practice. Guides at 3. Furthermore, the AMA Guides are not intended to establish a rigid formula, though where use of the AMA Guides is required by statute, a deviation must be justified by competent medical evidence and be consistent with the specific dictates and general purpose of the Guides. AMJUR Workers 406. Here, Jennifer’s physician admitted the Guides do not address her specific injury. However, the Guides offer a means to assess impairment.

[¶ 15.] Whether the statutory requirements of SDCL 62-1-1.2 have been satisfied is a legal question, which we review de novo. SDCL 62-1-1.2 mandates that the AMA Guides be used to calculate the percent of the impairment to the whole person. Other states also statutorily specify the use of the AMA Guides for impairment assessment. As this Court has not reviewed this statute under the circumstances presented here, we will consider how other states have dealt with the Guides. In New Hampshire, the court held that if a physician, exercising competent professional skill and judgment, finds that the recommended procedures in the AMA Guides are inapplicable to estimate impairment, the physician may use other methods not otherwise prohibited by the AMA Gmdes. In re Rainville, 732 A.2d 406, 413, 143 N.H. 624, 632 (1999). Similarly, in New Mexico, the court noted, [t]he AMA Guide is a general framework, requiring flexibility in its application. Madrid v. St. Joseph Hosp., 928 P.2d 250, 258, 122 N.M. 524, 532, (1996). While the AMA Guide was intended to help standardize the evaluation of a workers impairment, it was not intended to establish a rigid formula to be followed in determining the percentage of a workers impairment. Id.

[¶ 16.] Here, the physician used the Guides, Jennifer’s medical history, and his professional experience to determine Jennifer had a 10-15% impairment rating. And while the Guides do not contain ratings on Jennifer’s specific injury, they do contain methods for evaluating respiratory injuries. The physician further explained that while under one of the Guides rating tests Jennifer would show no impairment, she nevertheless has a permanent injury to her lung, greatly increasing her risk to redevelop the condition and increasing her susceptibility to pneumomediastinum or pneumothorax. Consequently, at trial, the physician testified that Jennifer had a 10 to 15 percent whole person impairment under that portion of the Guides that allow independent physician assessment when the specific injury is not covered. Although we acknowledge that the physicians methodology was subjected to substantial critical review in his deposition, that deposition was incorporated into the trial record, and the trial court ultimately found that a 10 to 15 percent impairment did exist. Whether and to what extent an alternative method is proper, credible, or permissible under the AMA Guides are questions of fact to be decided by the board. Rainville, 732 A.2d at 413, 143 N.H. at 632 (citing City of Aurora v. Vaughn, 824 P.2d 825, 827 (Colo.Ct.App.1991) (as trier of fact, agency entitled to rely on expert testimony supporting deviation from AMA Guides)). Here, this matter was tried before the circuit court, and that trier of fact found the physicians alternative methodology credible. Considering the totality of the evidence, we do not conclude that the trial courts finding was clearly erroneous.

[¶ 17.] Where the legislature has expressly incorporated a private organizations standards into our statutes and where those standards expressly allow for professional discretion in reaching a determination, such discretion, if supported by competent medical evidence and if consistent with the general purpose of the AMA Guides, satisfies the statutory requirements of SDCL 62-1-1.2.

3. Whether the VFW was entitled to a jury trial on the worker’s compensation claim.

[¶ 18.] When an employer is not covered by workers compensation, SDCL 62-3-11 applies:

Any employee, who is employed by an employer who is deemed not to operate under [workers compensation], may elect to proceed against the employer in any action at law to recover damages ... or may elect to proceed against the employer in circuit court under the provisions of [workers compensation], as if the employer had elected to operate thereunder ... and the measure of benefits shall be that provided under 62-4-1 plus twice the amount of other compensation allowable ...

Id.

[¶ 19.] Jennifer chose to bring this action under workers compensation provisions. Although the statute places the action in circuit court instead of the Department of Labor, the action is to progress as if the employer had elected to operate under workers compensation. As there is no right to a jury trial in an administrative workers compensation proceeding, there is no right to a jury trial in a circuit court proceeding based on SDCL 62-3-11. We affirm the trial courts denial of a jury trial.

4. Whether the trial court had sufficient evidence to remove the Cantal-opes’ federal and state wage and hour claims.

a. Actual/Constructive Knowledge

[¶ 20.] If employees work overtime and their employer has actual or constructive knowledge of it, employees must be compensated. The existence of actual or constructive knowledge is a question of fact. Graham v. Babinski .Properties, 1997 SD 39, ¶ 13, 562 N.W.2d 395, 398. The Cantalopes argue that actual or constructive knowledge is a fact for a jury to decide. The trial court found that the employer did not have actual or constructive knowledge of the Cantalopes each working in excess of 40 hours per week. The Cantalopes appeal the trial courts ruling and request that the trial courts order be vacated.

b. Exemptions to Wage and Hour Claims

[¶ 21.] The Cantalopes wage and hour claims are based in both state and federal law. The Cantalopes were hired to work an eighty hour week between them. VFW is open eighty hours per week. The Cantalopes claim that when the VFW sponsored private events during times the establishment would otherwise be closed, they consequently worked substantial overtime hours. VFW argued that the Cantalopes position was exempt from overtime compensation because they were employed in a management position and were therefore administrative employees. Certain administrative employees are exempt from the overtime provision. The trial court did not rule on the Cantalopes employee status. Rather, the trial court ruled that VFW did not have actual or constructive notice of the Cantalopes overtime and therefore removed the issue from a jury trial. Cantalopes request that the trial court rule whether their employment status exempted them from overtime compensation. Further, they point out that if they are exempt, then a trial as to VFWs knowledge of overtime would not be necessary. If their position is not exempt, they request that a jury decide the issue of overtime. Generally, the right to a jury trial exists in an FLSA [Fair Labor Standards Act] suit to recover minimum wages or overtime pay. 48A Am.Jur.2d Labor and Labor Relations 4620 (2003). Not all FLSA issues can be tried to a jury because FLSA provides that the court award any liquidated damages and attorneys fees and costs. Id.

[¶ 22.] We remand for the trial'court to determine if the Cantalopes management position was overtime exempt under the Fair Labor Standards Act. If the court finds that the position was exempt, then no jury trial would be necessary. If, on the other hand, the trial court determines that the position is not exempt, the question of whether VFW had actual or constructive knowledge of the Cantalopes overtime should proceed in a jury trial because of the disputed material facts on this issue.

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

[¶ 24.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(dissenting in parts 1 and 2 and concurring in parts 3 and 4).

1. Issue 1.

[¶ 25.] If this result had been reached after a properly noticed court trial, with findings of fact and conclusions of law as required, I would be inclined to concur. However, this result was reached improperly by summary judgment without findings of fact and conclusions of law. This is neither proper nor permissible in the face of genuine issues of material fact and this case must be reversed on Issue 1.

[¶ 26.] There are genuine issues of material fact in this case concerning willful misconduct and self-inflicted injury resulting from the inhalation of smoke, working in the municipal bar and inhaling cigar smoke. Even the physician’s testimony might have been different if he had known she had been smoking or that she was working in the bar.

[¶ 27.] No one is entitled to summary judgment unless they can show that there were no genuine issues of material fact. State Dept. of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citing Wilson v. Great Northern Railway Company, 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)) (explaining the principles of summary judgment). One of the most important principles underlying summary judgment is that it is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant. Id. Therefore, Issue 1 should be reversed and remanded for a trial.

2. Issue 2.

[¶ 28.] Accordingly we should remand Issue 2 as it is dependent upon the facts to be properly determined in a trial.

3. Issue 3.

[¶ 29.] I agree with the majority opinion that VFW is not entitled to a jury trial on the worker’s compensation claim.

i. Issue ⅛.

[¶ 30.] I agree with the majority opinion on Issue 4 and would remand on that basis.

      . The agreement was written in the VFW Board notes dated March 26, 1996. Specifically the note states, "Jim & Jennifer want to take the managing job as a couple with extra-additional help only on special evenings or functions.... No days off except for emergencies.” (emphasis in original).

      . James quit employment approximately two months after the incident.

      . VFW initially alleged that the Cantalopes were independent contractors but conceded at the hearing they were employees.

      . Injury as defined by SDCL 62-1-1(7) states in part:
      An injury is compensable only if it is established by medical evidence, subject to the following conditions:

        (b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is compensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment.

        Id. (emphasis added).

      . See SD Pattern Jury Instructions 2-04 (civil).

      . See W.W. Allen, Annotation, Modem view as to propriety and correctness of instructions referable to maxim falsus in uno, falsus in omnibus, 4 A.L.R.2d 1077 (1949).

      . NDCC 65-05-33 Filing false claim or false statement — Penalty.
      1.A person who claims benefits or payment for services under this title ... is guilty of a class A misdemeanor if the person ... does any one or more of the following:
      a. Willfully files a false claim or makes a false statement in an attempt to secure payment of benefits or payment for services.
      b. Willfully misrepresents that person's physical condition, including deceptive conduct which misrepresents that person's physical ability.
      c. Has a claim for disability benefits that has been accepted by the bureau and willfully fails to notify the bureau of:
      (1) Work or other activities as required under subsection 3 of section 65-05-08;
      (2) The receipt of income from work; or
      (3) An increase in income from work.
      2. If any of the acts in subsection 1 are committed to obtain, or pursuant to a scheme to obtain, more than five hundred dollars in benefits or payment for services, the offense is a class C felony.
      3. In addition to any other penalties provided by law, the person claiming benefits or payment for services in violation of this section shall reimburse the bureau for any benefits paid based upon the false claim or false statement and, if applicable, under section 65-05-29 and shall forfeit any additional benefits relative to that injury.
      4. For purposes of this section, "statement” includes any testimony, claim form, notice, proof of injury, proof of return to work status, bill for services, diagnosis, prescription, hospital or doctor records, X-ray, test results, or other evidence of loss, injury, or expense.

      . VFW argues that a full month’s compensation was paid even after Jennifer's injury and therefore she should not recover the amount that overlaps. James however worked after Jennifer's injury and because he was working Jennifer’s hours as well as his own, the salary paid was for actual work provided by James.

      . See Alaska Stat. § 23.30, 190 (1990); Ariz. Rev.Stat.Ann. § 23-1065(C) (1995); Colo.Rev. Stat. § 8-42-107(8)(c) (Cum.Supp. 1995); Ga.Code Ann. § 34-9-1(5) (1994); Ky.Rev. Stat.Ann. § 342.730(l)(c) (Michie/Bobbs-Merrill Cum.Supp. 1994); La.Rev.Stat.Ann. § 23-1221(4)(q) (West Cum.Supp. 1996); Me.Rev. Stat.Ann. tit. 39-A, § 153(8) (West Cum. Supp. 1996); Mass.Ann.Laws. ch. 152, § 35 (Law.Co-op. Cum.Supp. 1996); Mont.Code Ann. § 39-71-703(1)(b)(ii) (1995); Nev.Rev. Stat. § 616C, 490(2) (1995); NH.Rev.Stat. Ann. § 281-A:31-a (Cum.Supp. 1995); N.D.Cent. Code § 65-01-02(26)(1995); Olda. Stat.Ann. tit. 85, § 3(11) (West 1992); RI. Gen.Laws § 28-33-18(c)(1995); Tenn.Code Ann. § 50-6-241(a)(l)(Supp. 1995).

      . See also Steven Babitsky, et al., Understanding the AMA Guides in Workers Compensation 1.12 (3d ed. 2002).

      . The Code of Federal Regulations and various cases have formulated tests to determine if the employee's position is exempt.


author: SABERS, Justice.

text:
    2004 SD 1
    Donald LUTHER and Connie Luther, Plaintiffs and Appellants, v. CITY OF WINNER, a South Dakota Municipality, and Dan Britton, Defendants and Appellees.
    Nos. 22816, 22830.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Jan. 7, 2004.

      Stephanie E. Pochop of Johnson, Ek-lund, Nicholson, Peterson, Gregory, South Dakota, Attorneys for plaintiffs and appellants.
    David A. Pfeifle of May and Johnson, Sioux Falls, South Dakota, Attorneys for defendant and appellee, City of Winner.
    J.M. Grossenburg, Winner, South Dakota, Attorney for defendant and appellee, Dan Britton.
   SABERS, Justice.

[¶ 1.] Donald Luther sued Dan Britton and the City of Winner (City) for negligence. City brought a motion for summary judgment in which Britton joined. The trial court denied that motion. Brit-ton then brought another motion for summary judgment which City joined. The trial court granted the second motion in favor of both defendants. Luther appeals. By notice of review, City and Britton appeal the denial of the first motion for summary judgment. We 1) affirm the grant of Britton’s second motion for summary judgment; 2) reverse the grant of summary judgment with regard to City’s second motion for summary judgment; and 3) affirm the denial of defendants’ first motion for summary judgment.

FACTS

[¶ 2.] In 1997, City finished a project that included renovation of several blocks of its Main Street. The renovations included changing curbs, gutters and sidewalks. Britton was the engineer hired by City to design the renovations. Because one side of the street was approximately two feet lower than the other side, there were serious drainage problems. Part of the correction of these problems included changing the sidewalks in front of several downtown stores, including Karl’s Appliance. The new design for the sidewalk in front of Karl’s includes a 6 inch step in the sidewalk in addition to the curb.

[¶ 3.] Britton’s brief notes the following information regarding the sidewalk design:

The sidewalk runs north and south. Karl’s T.V. is located on the west side of the street in the middle of the block. The Winner Elk’s club is located on the east side of Main Street. The sidewalk in front of Karl’s, from the curb to the store front, is approximately 14.4 feet wide. The step in question is approximately 4.6. feet west of the curb. It is then approximately 9.8 feet west from the step to the front of Karl’s.

In other words, a customer of Karl’s would step out of the store on a level surface, walk approximately ten feet forward, encounter a six inch step down in the middle of the sidewalk, walk approximately four and a half feet and encounter the curb.

[¶ 4.] On June 23,1999, Luther went to Karl’s to purchase a refrigerator switch. He walked into the store from the street. He climbed both the curb and the step to get into the store. After shopping for awhile, Luther attempted to return to his car. As he walked toward his car, he forgot the step was there and he fell, causing injury to his shoulder. Luther asserts that at the time of his fall, there was no handrail or marking on the step or sidewalk to indicate that there was a step.

[¶ 5.] Luther brought suit against Brit-ton and City for negligent design and construction, and failure to warn of a dangerous condition. The trial court granted summary judgment to both defendants, holding that Plaintiff failed to present expert testimony regarding the standard of care. Luther appeals raising two issues:

1. Whether there are genuine issues of material fact which preclude summary judgment on the negligent design and failure to warn claims against Britton.
2. Whether there are genuine issues of material fact which preclude summary judgment on the negligence claim against the City.

By notice of review, the defendants raise one issue:

3. Whether the trial court erred in denying the defendants’ first motion for summary judgment.

STANDARD OF REVIEW

[¶ 6.]Our standard of review on a grant or denial of summary judgment is well settled. Summary judgment is proper where, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. SDCL 15 — 6—56(c).

We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. [ ] We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. [ ] In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Roden v. General Cas. Co. of Wisconsin, 2003 SD 130, ¶ 5, 671 N.W.2d 622, 624 (internal citations and quotations omitted).

[¶ 7.] 1. WHETHER THERE ARE GENUINE ISSUES OF MATERIAL FACT WHICH PRECLUDE SUMMARY JUDGMENT ON THE NEGLIGENT DESIGN AND FAILURE TO WARN CLAIMS AGAINST BRITTON.

[¶ 8.] Luther asserts that his complaint alleged two claims of negligence against Britton; negligence in the design of the step and failure to warn. He asserts that, as designed and constructed, the sidewalk was unreasonably dangerous and that both defendants were liable for failure to place appropriate warning signs or markings. On Britton’s motion for summary judgment, the trial court held:

In this case, from a review of the record, the court believes that an expert would be required. And there is no evidence present to show what the standard of care would be for the city engineer. And that whether or not that curb, and what all went into that street project, really did require expertise, and requires the plaintiff to come in and show that that work fell below that standard of care.

[¶ 9.] There is no requirement that a party produce expert testimony when the question is within a layperson’s knowledge. Bland v. Davison County, 1997 SD 92 ¶ 30, 566 N.W.2d 452, 461 (citing Schaffer v. Edward D. Jones, 1996 SD 94, ¶ 8, 552 N.W.2d 801, 805). However, expert testimony is required to establish the standard of care for a professional unless the issue is within the common knowledge of the jury. Mid-Western Elec. Inc., v. DeWild Grant Reckert & Associates Co., 500 N.W.2d 250, 255 (S.D.1993) (citing Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986)). To use an analogy favored by the parties, an expert witness may not be required when a plaintiff is alleging that a surgeon cut off the wrong limb; a layperson would know based on their common knowledge whether such a surgery was negligent. On the- other hand, if the question was whether the surgeon correctly performed a complicated surgery for which he or she was specially trained, an expert may be required. Luther argues that this case did not require expert testimony because a layperson would know if the design of the sidewalk was negligent. In the alternative, he argues that he provided evidence of the appropriate standard of care through Brit-ton’s deposition testimony.

[¶ 10.] Luther argues that the following evidence was sufficient to overcome the trial court’s determination that expert tes- . timony was necessary on the professional standard of care for an engineer:

1) Britton admitted that he consulted, designed, oversaw and worked on the sidewalk in question.
2) Luther testified that the step was “unmarked, hard to see and easy to forget.”
3) An affidavit from Luther’s doctor stated in part, “at the time that Mr. Luther came to see me, I did comment to him that there had been several other people who had fallen in that same area who had sought medical care for their injuries at my clinic[J”
4) Luther testified that the manager of Karl’s told him that he was aware of another person falling in the area.
5) Britton stated that he had heard a conversation about somebody falling in the area.

[¶ 11.] These assertions were insufficient to overcome summary judgment. “[T]he non-moving party in a summary judgment proceeding ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Roden, 2003 SD 130 at ¶ 31, 671 N.W.2d at 629 (quoting SDCL 15-6-56(e)). The affidavit of Luther’s doctor was hearsay and would have been inadmissible. The statement by Luther that the manager at Karl’s knew of another person who fell was hearsay within hearsay and would have been inadmissible. Luther’s argument that Britton was aware that someone had fallen on the step was insufficient to establish negligence as there is no indication in the testimony when Britton received this information. All that remains are Luther’s conclusory assertions that the step was negligently designed and constructed because he fell. Such conclu-sory assertions are insufficient to establish a genuine issue of material fact with regard to the design of the sidewalk. Id.

[¶ 12.] Although it is a close question because a step in a sidewalk is an obvious obstruction, but easy to overlook or forget, Luther’s failure to present expert testimony on the professional standard of care for an engineer is fatal to his claim against Britton. While these assertions may create a genuine issue of material fact as to whether the step was properly marked, without expert testimony, there is insufficient evidence to indicate that Brit-ton’s design and construction were negligent. Nor is there evidence to support the assertion that Britton, who was not the landowner, retained a duty, two years after construction was completed, to provide warning that there was a step.

[¶ 13.] Luther asserts that the following quotes from Britton’s deposition amount to evidence of the standard of care applicable to Britton:

Q. [Mr. Johnson]: Now tell me about marking steps, what’s your understanding of the ADA requirements for marking steps to alert people of them?
A. [Britton]: If they are — we painted those in — I don’t know the exact date in '97 — the first time before the project was complete. The project was completed in '97, and we painted all of those steps with yellow. I think we used a two-inch strip on the top, did the complete face of it in yellow street-marking paint.
Q. Why did you do that?
A. The council asked us if we wanted those painted, if we would paint those.
Q. Did you paint them or did the city people do that?
A. I painted part of them — some of them. I think I did the ones in front of Karl’s and the one on the north side of Penney’s, and the city crew came, they did some follow-up stuff. They had some summer help showed up and did some of that later on.
Q. About when do you think the first painting was done?
A. That had to be before we left the project, that project was completed in the fall of '97, so that would have been the first time it was painted.
* * *
Q. Why did you do that?
A. I volunteered to do it when the city decided they were going to do it. We were at the end of the phase, the construction was winding Down ... I said, “let me do that[.]”
Q. And was part of that was for safety purposes?
A. Sure.
Q. To paint that and mark that?
A. Just to paint it for visibility.

Luther argues that this testimony prohibits Britton or City from claiming that visibility and safety were not concerns with the design and construction of the sidewalk. He concludes that therefore the jury should be allowed to decide whether the step in front of Karl’s was painted or otherwise marked at the time he fell. His argument appears to be that a finding that it was not painted or otherwise marked would establish negligent design and construction and negligent failure to warn of a dangerous condition.

[¶ 14.] Britton argues that this testimony is insufficient to establish a professional standard of care for an engineer and that the trial court was correct in granting summary judgment. Although it is a close question as indicated, under these circumstances, whether this city sidewalk was negligently designed and constructed was not a question “within a layman’s breadth of knowledge.”

[¶ 15.] In determining how to design the project, Britton was required to take issues into consideration that are not within the typical lay person’s realm of knowledge. For example, he claims he had to create a design which complied with the Americans with Disabilities Act. He also had to take into account the slope of the hill on which Main Street was built to correct drainage problems caused by the fact that one side of the street was two feet higher than the other side. Although Luther argues that the issues of drainage and ADA compliance are “red herrings,” the fact remains that the typical lay person would have no idea how to design and construct a sidewalk under the conditions on Winner’s Main Street. Furthermore, Britton’s testimony that he painted the steps at City’s request is insufficient to establish a general standard of care for a professional engineer. The fact that Brit-ton may have painted the step created no duty for him to warn or maintain the step two years after design and construction were completed.

[¶ 16.] The trial court did not err in granting Britton’s summary judgment motion on the basis of Luther’s failure to present expert testimony on the engineer’s professional standard of care.

[¶ 17.] 2. WHETHER THERE ARE GENUINE ISSUES OF MATERIAL FACT WHICH PRECLUDE SUMMARY JUDGMENT ON THE NEGLIGENCE CLAIM AGAINST THE CITY.

[¶ 18.] The trial court was not specific in its reasoning for granting summary judgment in favor of City. Instead, the court orally held:

In this case, from a review of the record, the court believes that an expert would be required. And there is no evidence present to show what the standard of care would be for the city engineer. And that whether or not that curb, and what all went into that street project, really did require expertise, and requires the plaintiff to come in and show that that work fell below that standard of care.

To the extent the trial court assumed that the same standard of care applied to City as to the engineer, the holding cannot be sustained. Britton would be held to a professional standard of care and following the reasoning of the trial court, that same standard of care would also apply to the City. This conclusion is legally incorrect as the City would be held to the standard of care for a landowner. For the same reasons we noted under Issue 1, the trial court was correct in granting summary judgment on Luther’s claim against City for negligent design and construction. By not providing expert testimony, Luther failed to show that the design and construction fell below professional standards. However, Luther’s claim against City for negligence in failing to warn should not have been subject to summary judgment.

[¶ 19.] City argues that it is not liable’ because Luther has failed to show that the structure “presents an unreasonable risk of harm” under Restatement (Second) Torts, §§ 343 and 343A. In the alternative, City argues that the step was a known or obvious danger and City was entitled to assume that Luther would protect himself. The trial court' did not reach the question whether the City, was entitled to summary judgment on the issue of failure to warn because it chose to dispose of the entire case on the expert testimony issue. We decline to make this determination for the first time on appeal, but note that generally, a possessor of land owes a business visitor or an invitee a duty of ordinary care for the benefit of the invitee’s safety. Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986) (additional citations omitted). A breach of that duty renders the possessor liable. Id. The duty requires the possessor to keep the property “reasonably safe.” Id. (citing Restatement (Second) Torts, § 343, comment b (additional citations omitted)). “This general duty includes the duties owed to licensees to warn of concealed, dangerous conditions known to the landowner[.]” Id. (emphasis in the original). However, there is no duty to warn when the dangerous condition “is so obvious that the invitee should reasonably have been aware of it.” Id. “It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Id. (quoting Norris v. Chicago, M., St. P. & P.R. Co., 74 S.D. 271, 272, 51 N.W.2d 792, 793 (additional citations omitted)).

[¶ 20.] The possessor of land is not an insurer of the welfare and safety of an invitee and therefore will not be liable when the invitee knows of the danger or the danger is obvious to the invitee. Restatement (Second) Torts, § 343A(1). We have accepted the rationale of this rule which states in part:

Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor,'or so obvious to him that he may be expected to discover them.

Mitchell, 396 N.W.2d at 315 (quoting Restatement (Second) Torts, § 343A, comment e) (emphasis in the original). However, comment f of § 343A provides instances in which the possessor should anticipate that a dangerous condition will cause physical harm despite its known or obvious nature. The comment provides that in such cases:

[ T]he possessor is not relieved of the duty of reasonable care which he owes the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted so that he will not discover what is obvious or will forget what he has discovered, or fail to protect himself against it.

[¶21.] The trial court could not properly dispose of the claim against City for its alleged failure to warn based on the fact that Luther failed to present expert testimony as to Britton’s standard of care. City could still be liable for failure to warn about the step. There are genuine issues of material fact, including but not limited to whether 1) the step was an unreasonably dangerous condition such that City had a duty to warn; 2) the condition of the sidewalk was so obvious that warning was unnecessary; 3) the step was insufficiently marked at the time Luther fell; and 4) Luther was distracted so that warning was necessary. Summary judgment was inappropriate. The trial court’s grant of City’s motion for summary judgment is reversed.

[¶ 22.] 3. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S FIRST MOTION FOR SUMMARY JUDGMENT.

[¶ 23.] In its first motion for summary judgment, City argued that Luther admitted he was more than slightly contribu-torily negligent. Britton joined in this motion and joins in the notice of review on appeal.

[¶ 24.] The determination of due care and other questions relating to negligence and contributory negligence are “generally questions of fact for the jury.” Mitchell, 396 N.W.2d at 313 (citations omitted). “Issues of negligence, contributory negligence, and proximate cause are ordinarily questions of fact and it must be a clear case before a trial judge is justified in taking these issues from the jury.” Id. The only time these questions become a matter of law is when “reasonable men can draw but one conclusion from facts and inferences[.]” Id. Whether Luther was contributorily negligent was a question of fact for the jury and a matter upon which reasonable minds could differ. Furthermore, our holding under Issue 2 disposes of this issue because we have determined that there are genuine issues of material fact such that summary judgment in favor of City on the issue of failure to warn of a dangerous condition was not appropriate.

[¶ 25.] The grant of summary judgment in favor of Britton is affirmed as is the grant of summary judgment on the issue of negligent design against City. The grant of summary judgment in favor of City on the issue of failure to warn is reversed. The denial of the first summary judgment motion is affirmed as to both defendants.

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

| anoln re the COMMITMENT OF William L. MORFORD.

      . This description is based on measurements taken by Britton's attorney and written in his brief. However, there is no specific description of the site in the record.

      . Luther's complaint does allege negligent design and construction and negligence by failing to warn. However, his brief does not seem to argue these as separate negligence claims. Rather, the argument seems to be that because the step was not painted and there were no handrails, there was insufficient warning of the danger and therefore the sidewalk and step were negligently designed and constructed. In other words, his argument is that by failing to warn of the danger, City and Britton became liable for negligent design and construction.

      . His testimony on this issue is unclear as to when or where he heard this information and is unclear whether the fall referred to was Luther’s or a fall that took place before or after Luther's fall.

      . Luther attempts to use the fact that Britton painted the step to establish a standard of care for a professional engineer and then argues that proof of Britton's negligence lies in the fact that the step was not painted.

      . City cites Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525, 526-27 (S.D.1932), (or the proposition that by not showing that the sidewalk was negligently constructed and designed, Luther failed to show that the structure presented an unreasonable risk of harm and therefore City is not liable as a matter of law. Dicta in Hermandson supports the proposition that a city will not be liable for an accident caused solely by its plan of construction unless the plan is so manifestly dangerous that a court can say as a matter of law that the plan was dangerous and unsafe. Id. Hermandson does not support City's assertion that a City will never be liable for any unmarked step-down.


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Appellant, v. Eric NMN SMITH, Respondent.
    No. C3-02-96.
    Supreme Court of Minnesota.
    Feb. 12, 2004.

      Mike Hatch, Minnesota Attorney General, Amy Klobuchar, Hennepin County Attorney, St. Paul, MN, David C. Brown, Assistant County Attorney, Minneapolis, MN, for Appellant.
    John M. Stuart, Minnesota State Public Defender, Sara Lynne Martin, Assistant State Public Defender, Minneapolis, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Appellant, State of Minnesota, appeals from the court of appeals decision, which granted Eric Smith, defendant and respondent, a new trial because the trial court’s jury instructions diluted the reasonable doubt standard. We reverse.

On July 14, 2001, two Minneapolis police officers patrolling in a marked squad car spotted Smith driving a blue Chevrolet Blazer bearing the license plate number of a vehicle that had been reported to the Minneapolis Police Department as stolen. The officers testified that they never lost sight of the vehicle and pursued the vehicle until it pulled over to the side of the street. The police stopped behind the alleged stolen vehicle with emergency lights activated. After Smith parked the Blazer, the officers witnessed Smith exit the vehicle from the driver’s door and approach the police car. The officers apprehended Smith shortly thereafter and later testified that Smith was the driver and lone occupant of the vehicle.

At trial, Smith’s version of the events differed substantially from the account given by the police officers. Smith testified that while sitting on his aunt’s front porch he witnessed a blue Chevrolet Blazer speed up the street and park in front of his aunt’s house. The vehicle’s two occupants quickly exited the vehicle and fled in opposite directions. Smith walked over to the vehicle and looked inside where he noticed that the plastic casing surrounding the steering column had been chipped away. Suspicious that the vehicle was stolen, Smith decided that he should contact the police department. At that moment, a police squad car came to a stop behind the stolen vehicle. Smith approached the police officers to discuss the events he had witnessed moments earlier. After brief questioning by the police, Smith was arrested and charged with theft of a motor vehicle under Minn.Stat. § 609.52, subd. 2(17) (2000).

On September 26, 2001, a jury convicted Smith of both crimes. Smith appealed the convictions on five separate grounds: 1) that the trial court’s jury instruction on reasonable doubt, which departed from the model jury instruction, diluted the state’s burden of proof; 2) that the trial court should have suppressed evidence as a discovery sanction; 3) that the state committed a Brady violation; 4) that a juror should have been removed for cause; and 5) that the trial court erred in sentencing Smith as a career offender. State v. Smith, 655 N.W.2d 347, 351-52 (Minn.App.2003). Of the five issues raised on appeal, the court of appeals rejected 2) through 5) listed above, but reversed and remanded on the first issue. Id. at 353-56. The court of appeals concluded that the trial court’s jury instruction diluted the reasonable doubt standard and, therefore, granted Smith a new trial. The state asks this court to reverse the court of appeals’ decision and reinstate the convictions of auto theft and receiving stolen property.

The reasonable doubt standard is the cornerstone of our criminal justice system. “The standard provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (internal quotations omitted). Although the United States Constitution requires that a defendant’s guilt be proved beyond a reasonable doubt, trial courts are not bound to use any particular form of words to define the government’s burden of proof as long as, taken as a whole, the concept of reasonable doubt is correctly conveyed to the jury. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). The United States Supreme Court has held that the proper inquiry into the reasonable doubt jury instruction asks if the jury was reasonably likely to apply the instruction in an unconstitutional manner, not whether the jury could have applied the instruction in an unconstitutional manner. Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Minnesota courts have adopted a similar approach to analyzing jury instructions and, in particular, the reasonable doubt jury instruction. State v. Moorman, 505 N.W.2d 593, 604-05 n. 6 (Minn.1993) (citing Estelle, 502 U.S. at 72 n. 4). Minnesota trial courts are afforded broad discretion and considerable latitude in choosing the language of jury instructions. Hilligoss v. Cargill Inc., 649 N.W.2d 142, 147 (Minn.2002); State v. Gray, 456 N.W.2d 251, 258 (Minn.1990). Instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). We will review the unobjected to jury instructions for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

Here, the trial court first instructed on the presumption of innocence. It then supplied the jury with a description of the reasonable doubt standard that departed, in part, from the exact wording of the reasonable doubt instruction provided in the Criminal Jury Instruction Guide 3.03, an articulation of the reasonable doubt standard that is recognized by Minnesota courts. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.03 (4th ed.1999) (hereinafter CRIMJIG); State v. Sessions, 621 N.W.2d 751 (Minn.2001). The standard CRIMJIG 3.03 from which the trial court departed provides:

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.

Although courts may favor the use of CRIMJIGs, their use is not mandatory. Flores, 418 N.W.2d at 156 (stating that although it may have been preferable for the trial court to use the words of a CRIMJIG, the instruction fairly and adequately explained the law and was not error). Here, the trial court gave the jury the following reasonable doubt instruction:

Proof beyond a reasonable doubt is simply that amount of proof that ordinary men and women rely upon in making their own most important decisions. You have a reasonable doubt if your doubts are based upon reason and common sense. You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details.

At trial, Smith did not object to the trial court’s instruction on the reasonable doubt standard. Instead, he raised the issue in a post-trial motion stating that the jury instruction diluted the reasonable doubt standard and, therefore, a new trial was necessary. The court denied the motion and Smith appealed to the court of appeals.

Reversing the trial court’s decision, the court of appeals focused primarily on the language, ‘You do not have a reasonable doubt if your doubts are based upon speculation* * *.” Smith, 655 N.W.2d at 352-53. Turning to the language “fanciful and capricious” set forth in the standard CRIMJIG 3.03, the court of appeals compared the dictionary definitions of fanciful and capricious with the dictionary definition of speculation and concluded that substituting “speculation” for “fanciful and capricious” allowed the defendant to be convicted under a less stringent standard than that required by due process. Id. at 353. Specifically, the court reasoned that defining reasonable doubt to exclude doubts based on “speculation” diluted the reasonable doubt standard because some speculation by the jury is reasonable. Id. Therefore, in the court’s view, asking the fact-finder to disregard reasonable speculation impermissibly narrowed the standard and allowed Smith to be convicted more easily. Id.

As noted above, Smith did not object to the jury instruction on reasonable doubt before the jury was instructed. When the defendant fails to object, the court will review the given jury instruction to determine if it constituted plain error. Griller, 583 N.W.2d at 740. Plain error analysis involves a three-prong test, which requires: (1) an error; (2) that is plain; and (3) affects substantial rights. Id. at 740. Each prong of the plain error test must be satisfied in order for the error to be corrected. Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

The first prong of the plain error test requires the existence of an error. On review of trial court instructions, it is error if the instructions confuse, mislead, or materially misstate the law. State v. Gutierrez, 667 N.W.2d 426, 434 (Minn.2003). We analyze the trial court’s instructions with the understanding that trial courts possess significant discretion in the selection of instruction language and that instructions must be read as a whole to determine whether they accurately describe the law. Hilligoss, 649 N.W.2d at 147; Flores, 418 N.W.2d at 155.

Reading the instructions in their entirety and in the context of the presumption of innocence leaves little room for misunderstanding. The trial court began its instruction to the jury by emphasizing the importance of two principles— the presumption of innocence and the concept of proof beyond a reasonable doubt. The trial court’s remarks on the presumption of innocence proceeded as follows:

The defendant is presumed innocent of the charge. That presumption of innocence remains with the defendant unless and until he has been proved guilty beyond a reasonable doubt. The fact that the defendant is on trial, has been arrested or has been brought before the Court by the ordinary processes of the law should not be considered by you as evidence in this case or in any way suggesting guilt.
The burden of proving guilt is on the State of Minnesota. The defendant does not have to prove his innocence.

The presumption of innocence instruction was followed by several paragraphs of instruction concerning the concept of reasonable doubt. With respect to the theft of a motor vehicle charge, the court gave the following instruction:

If you find that each of these elements has been proven beyond a reasonable doubt, you must find the defendant guilty of the crime of theft of a motor vehicle. If you find that any element has not been proven beyond a reasonable doubt, you must find the defendant not guilty of theft of a motor vehicle.

The court gave an identical instruction with respect to the receiving stolen property charge, then explained the concept of reasonable doubt with the following instruction:

The law requires the State to prove its case beyond a reasonable doubt. It does not require the case to be proved beyond all possibility of doubt, nor does it require that the case be proved to a mathematical certainty.
Proof beyond a reasonable doubt is simply that amount of proof that ordinary men' and women rely upon in making their own most important decisions. You have a reasonable doubt if your doubts are based upon reason and common sense. You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details.

(emphasis added). Smith argues, and the court of appeals agreed, that including the word “speculation” in the trial court’s definition of reasonable doubt impermissibly diluted the reasonable doubt standard and rendered the entire jury instruction erroneous. Smith, 655 N.W.2d at 353. In contrast, the state contends that Smith’s argument and the court of appeals’ reasoning impermissibly focus upon the word “speculation” in isolation and fail to read the instructions as a whole. Because jurors do not engage in “technical hairsplitting” of individual words the way lawyers do, a juror’s understanding of words is considered in light of the context in which the word is received. Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

In our view, the instructions read as a whole conceptualize reasonable doubt in five different ways: 1) reasonable doubt does not require the case to be proved beyond all possibility of doubt; 2) reasonable doubt does not require the case to be proved to a mathematical certainty; 3) reasonable doubt is the amount of proof that ordinary men and women rely upon in making their own most important decisions; 4) reasonable doubt is based on reason and common sense; and 5) reasonable doubt is not based on speculation and irrelevant details. Thus, the word “speculation” cannot be viewed by itself, but must be read in context and in tandem with the words “irrelevant details,” the words with which speculation is coupled. Further, the word “speculation” must be viewed within the broader scheme of the instructions, i.e., the trial court’s other descriptions of reasonable doubt as well as the presumption of innocence. When the word “speculation” is read in this context, we are satisfied that its inclusion does not impermissi-bly narrow the reasonable doubt standard nor mislead, confuse, or misstate the law. While modifications or departures from the CRIMJIGS in criminal cases must be done with considerable care so as not to impair fundamental principles of law, we conclude that the trial court’s instruction on reasonable doubt did not constitute plain error.

Reversed.

      . The complaint was later amended to include a count of receiving stolen property under Minn.Stat. § 609.53, subd. 1 (2000).

      . The court of appeals also considered and rejected Smith’s argument that the use of the word "simply” in the jury instruction diluted the reasonable doubt standard. Smith, 655 N.W.2d at 353. We agree with the court of appeals.

      . In addition to the state's contention that the court of appeals failed to read the instructions as a whole, the state challenges the court of appeals', decision on the grounds that the court considered how a jury "could have" applied the instruction, rather than how the juiy was “reasonably likely” to apply the instruction. The state argues that utilizing a "could have” test caused the court to consider all possible dictionary definitions of the word speculate and make guesses as to how a juiy might apply them. Although it is unclear which test the court of appeals applied, Smith concedes, and we agree, that the “reasonable likelihood” test is the proper standard of review for this appeal.

      . Two other courts have upheld reasonable doubt instructions containing the word “speculation.” In United States v. Edelin, 996 F.2d 1238 (D.C.Cir.1993), the court held that defining reasonable doubt to exclude speculation did not impermissibly narrow the reasonable doubt standard stating, "[W]e have recognized that appellate courts' picking over every possible nuance of an instruction * * * is likely to drive district courts into a ritualistic recital of canned language that numbs the jury.” Id. at 1242 (internal quotation omitted). In Johnson v. Alabama, 256 F.3d 1156 (11th Cir.2001), the defendant argued that the phrases "moral certainty” and “actual and substantial doubt” impermissibly lowered the state's burden of proof. Id. at 1191 In upholding the trial court's instruction, the circuit court relied on the word "speculation” to provide context and ultimately save the challenged portions of the reasonable doubt instruction. The court held that contrasting “actual and substantial doubt” with "speculation and guesswork” made the reasonable doubt standard clear to the jury. Id. at 1193— 94, nn. 23, 24.