author: RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Paul Nelson COONROD, Appellant.
    No. CX-01-2062.
    Court of Appeals of Minnesota.
    Nov. 5, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

RANDALL, Judge.

. Appellant Paul Coonrod appeals his conviction of soliciting a child to engage in sexual conduct, arguing that the trial court abused its discretion in admitting evidence of prior bad acts and in instructing the jury on the elements of the offense. He also argues that the evidence did not establish that his conduct violated the statute. Because we conclude that the trial court abused its discretion in admitting evidence of prior bad acts, we reverse and remand.

FACTS

Appellant Paul Coonrod was charged with soliciting a child to engage in sexual conduct following an Internet child-exploitation sting operation that caught Coonrod communicating in a chat room with “Jaimel4,” a fictitious persona created by a U.S. postal inspector. After Coonrod had sent a number of sexually explicit email messages to “Jaimel4,” police arranged a face-to-face meeting, using an adult female undercover officer. When Coonrod appeared at the arranged meeting site and approached the officer, he was arrested.

Ron Miller, the U.S. postal inspector, testified that he was working with a task force targeting the exploitation of children on the Internet, the Internet Crimes Against Children Task Force. Miller testified that he would typically enter an Internet chat room while assuming the identity of a child. Miller testified that on August 3, 2000, he entered MSN Chat, a Microsoft chat room that Miller testified was not limited to adults. Using the name “Jaimel4,” Miller participated in the chat session and soon received a “whisper” (private communication from another chat room participant) from a “Mnpablito,” who turned out to be appellant Coonrod.

Miller testified that “Mnpablito” inquired: “Just 14 and fun?” Coonrod emailed a photograph of himself, and Miller responded with a photograph of a female undercover officer taken when she was approximately 14 years old. Miller testified that Coonrod raised the possibility of “Jaimel4” visiting his apartment, where they could have sex. Miller, participating under the name “Jaimel4,” ended the chat room exchange when Coonrod suggested meeting.

Miller testified the e-mail relationship lasted for a month and a half. During this relationship, Coonrod gave “Jaimel4” his phone number, sent two more pictures of himself, and then set up a face-to-face meeting for August 18. Although police posted the undercover officer at the arranged meeting site, Coonrod did not appear for the meeting. Miller testified that Coonrod later explained that the meeting place was too close to a police station. Coonrod and the undercover people set a second meeting for September 20. It did take place.

Following Miller’s testimony, there was a discussion on possible Spreigl evidence held outside the presence of the jury. The evidence consisted of six or seven file folders found in a search of Coonrod’s computer that were labeled with female names. One of these folders was for J.L., a fifteen-year-old whom Coonrod asked to go out with him. The prosecutor moved to admit this evidence, while conceding that she had not provided a formal Spreigl notice to the defense.

The trial court ruled that without the required rule 7.02 notice, the evidence would not be admissible as Spreigl evidence. The court, however, ruled that because there was no challenge to the police search of Coonrod’s computer, the police officer could testify to what was found on it “whether or not it is relevant.” The court did state it would not admit any testimony from J.L.

Officer Shannon Sills, the undercover officer who played the role of “Jaimel4” in the arranged meetings, testified that she had provided a photograph of herself, taken when she was 14 or 15, for use in the Internet operation. Sills testified that she dressed in a “half shirt” and carried a backpack when she went to the arranged site of the September 20 meeting. Officer Sills testified that Coonrod stopped his truck, left the vehicle, waved to her, and then walked toward her, asking as he approached whether she was “Jaime.” Sills testified that Coonrod asked about her hair, which had been had cut shorter than in the photograph, and touched her arm, “like we were going to go to [his] car,” before police moved in to arrest him. Sills testified that she was 29 years old when this meeting occurred.

Sergeant Brooke Schaub testified that he found about seven file folders on Coon-rod’s computer “that were associated with female names.” Although Schaub testified it was difficult to tell the ages of the females shown in the pictures, he estimated they were aged “16 to 23.” In one file folder labeled “Jackie’s pics, or Jackie’s web page,” Schaub testified he found several pictures of teen-age girls, including one wearing a hockey uniform. Schaub testified that he discovered that someone using Coonrod’s e-mail address had left a posting on Jackie’s web site, asking her out and leaving Coonrod’s phone number. Schaub testified that the web page indicated that Jackie was 15 years old.

On cross-examination, Sergeant Schaub conceded that it would not be illegal generally for an adult to talk about sex with a 16-year-old. He testified that there was evidence on Coonrod’s computer that he had done a lot of scanning of personal ads, On re-direct, Schaub testified that there were also a number of “banner ads” for teen chat rooms on Coonrod’s computer, indicating Coonrod had an interest in teens.

Coonrod testified that he liked to “goof around” on computers and that he was familiar with chat rooms, which he described as “free-for-alls” where you could not believe anything you read. Coonrod testified that the MSN Chat room where he communicated with “Jaimel4” screened people for age, although he admitted that minors could get in by misrepresenting their age or the consent of their parents.

Coonrod testified that he did not think “Jaimel4” was actually 14 years old and that the picture he received of her was too small to tell her age. Coonrod also testified that when “Jaimel4” called him, it was on his cell phone, while he was in his car, and he did not think he was talking to a 14-year-old. He testified that at their arranged meeting he would have driven away if he had seen a 14-year-old girl. Coonrod testified, in fact, that he had arranged to meet one female at the Mall of America, but walked away when he saw from a distance that she appeared to be 13 or 14 years old.

On cross-examination, Coonrod admitted that he had put in his “whisper” to “Jaimel4,” “Just 14 and fun?” before “Jaimel4” had told him her age. He also admitted that he had disclosed to “Jaimel4” a lot of accurate information about himself. Coonrod admitted that he had sent many e-mails to “Jaimel4” that were sexual in nature despite having no information indicating she was any age other than 14. When asked about the computer search ' showing “pictures of young girls in your computer,” Coonrod admitted only that he had “pictures of women” on his computer.

The jury found Coonrod guilty as charged. The presumptive sentence was one year and one day stayed. The trial court departed dispositionally, executed the year-and-a-day sentence, and Coonrod went to prison. This appeal follows.

ISSUES

I. Did the trial court abuse its discretion by allowing evidence of prior bad acts?

II. Did the district court abuse its discretion in instructing the jury on the elements of the offense?

III. Is the evidence sufficient to support the conviction?

ANALYSIS

I. Spreigl

Coonrod argues that the trial court abused its discretion in admitting evidence that he had created files on his computer for juvenile females whom he had contacted. Coonrod argues that this was Spreigl evidence that should not have been admitted without pretrial notice, which the prosecutor admitted she did not provide. We agree.

A defendant’s past acts need not be criminal convictions for the limitations on the use of Spreigl evidence to apply. See Minn. R. Evid. 404(b) (providing that evidence of “another crime, wrong, or act” is not admissible to show action in conformity with the prior act); State v. Orfi, 511 N.W.2d 464, 470-71 (Minn.App.1994) (analyzing evidence of defendant’s callous attitude and controlling behavior toward his son as Spreigl evidence), review denied (Minn. Mar. 15, 1994).- The evidence that Coonrod had communicated by electronic means with teen-age girls and had asked one out on a date easily had the potential to prejudice the. defense by suggesting to the jury that he acted in conformity with that conduct in contacting “Jaimel4.”

The state must provide the defense with written pretrial notice of any evidence of other crimes or bad acts that it intends , to present at trial (with some narrow exceptions not applicable here). Minn. R.Crim. P. 7.02; State v. Bolte, 530 N.W.2d 191, 196-97 (Minn.1995). The state provided no notice of any intent to present evidence of the computer file folders, or any other Spreigl evidence. The state did disclose as a possible witness J.L., the subject of. one of the computer file folders, but did not identify her as a Spreigl witness. Although defense counsel admitted receiving police reports referring to the computer file folders, the complaint merely mentioned the search of Coonrod’s computer, without reciting any evidence found in that search to indicate the state might be using it to prove the offense. Thus, we cannot conclude that there was substantial compliance with the notice requirement. See Bolte, 530 N.W.2d at 199 (holding there was “substantial compliance” with the notice requirement where, although formal Spreigl notice was not given, the police reports alluded to the evidence of another incident, the evidence of that incident was listed among the materials seized from the defendant’s home, and the state “did not learn of the relevance of the evidence until after trial commenced”); Wanglie v. State, 398 N.W.2d 54, 57-58 (Minn.App.1986) (holding that mention in complaint of other incidents, defense’s access to statements and other documents concerning the other incidents, and familiarity of defense counsel with them supported admission of Spreigl evidence).

The trial court, while concluding that the computer-file-folder evidence was not admissible as Spreigl evidence because no notice was given, nevertheless admitted the evidence “whether or not it is relevant,” merely to show what the police did in executing a valid search warrant. We do not understand that ruling. “Evidence which is not relevant is not admissible.” Minn. R. Evid. 402. There was no issue to be decided at trial concerning police execution of the search warrant. It was not a necessary background to the discovery of the offense or to the offense itself. The trial court clearly erred in admitting the computer file folders into evidence on the basis that, because they were the product of a valid search, it did not matter if “they were relevant or not.” It is understood that when police execute a valid search warrant, certain items might be found, totally unrelated and irrelevant to the case at hand, perhaps totally personal, perhaps with a capacity for substantial prejudice. Search warrants define the scope of the search. They do not define admissible evidence. The scope of admissibility is an entirely different issue and is decided at trial by the trial judge, not by law enforcement when executing a warrant.

The erroneous admission of Spreigl evidence can be harmless error if, based on a review of the entire trial record, there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. Bolte, 530 N.W.2d at 198 (quotation omitted). We cannot conclude harmless error here on these facts. The (unnoticed) Spreigl evidence suggested to the jury that Coonrod was a predatory person with a propensity to seek out teen-age girls. The Spreigl evidence negated Coonrod’s testimony that he was only “goof[ing] around” in the chat room, that he really did not think that “Jaimel4” was under 16, and that he had no intention of having sex with anyone that young.

Not only did the Spreigl evidence have the potential to affect the jury’s verdict, but also the court failed to instruct the jury on how to properly consider the evidence. This court held in State v. Smith, 563 N.W.2d 771, 774 (Minn.App.1997), that where there was no pretrial Spreigl notice and no Spreigl cautionary instruction, it was not harmless error to admit the evidence. The same is trae here. Further, the state’s evidence was not so overwhelming that we can say there is no reasonable possibility the jury’s verdict was affected by the improperly admitted computer file evidence. The jury could have believed Coonrod’s claims that the chat room he was in was limited to adults, that he never believed “Jaimel4” was underage, that he was just “yanking her chain” by saying outrageous things, and that he knew when Officer Sills phoned him and when he saw her that she was an adult woman. These claims were much less credible once the jury knew that Coonrod was collecting photos of “teen-age girls” on the Internet and using the Internet to ask a 15-year-old girl for a date. Therefore, we must reverse and remand for a new trial. Although the erroneous admission of the Spreigl evidence requires reversal, we also briefly address the other two issues that Coonrod raises.

II. Elements of the offense

Coonrod argues that the trial court abused its discretion in instructing the jury on the elements of the offense. He contends that the court’s instruction that the state had to prove “Jaimel4” was fifteen or younger, or that Coonrod reasonably believed her to be that young, improperly diluted the standard of proof beyond a reasonable doubt.

A trial court is given “considerable latitude” in selecting the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quotation omitted). Jury instructions are viewed in their entirety to determine whether the law of the case is fairly and adequately explained. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

The Minnesota Supreme Court has held that an instruction in a fourth-degree criminal sexual conduct case on the element of sexual contact that allowed the jury to convict if “the touching could reasonably be construed” as being sexually motivated improperly diluted the standard of proof. State v. Tibbetts, 281 N.W.2d 499, 500-01 (Minn.1979). The court noted that this instruction “was tantamount to charging that if this [sexual] purpose could reasonably be inferred,” the jury could find the defendant guilty. Id. at 500. This would be inconsistent with the “beyond a reasonable doubt” standard, which certainly would require the jury to find more than a reasonable inference of sexual purpose.

Here, the challenged instruction did not invite the jury to find any element of the offense by reasonable inference. The term “reasonable,” in fact, applied to the thought process of Coonrod in assessing the age of “Jaimel4,” not to any thought process of the jury. The jury could have readily understood that it had to determine beyond a reasonable doubt that Coonrod “reasonably believed” that “Jaimel4” was under 16 (or that she actually was underage). The instruction did not present a conflict with the beyond-a-reasonable-doubt standard, as the instruction did in Tibbetts.

III. Sufficiency of the evidence

Coonrod argues that the evidence was insufficient to show that he solicited a “specific person” whom he “reasonably believed” was a child or that he intended to engage in sex with her. He points out that this was an undercover “sting” operation and that “Jaimel4” was a 29-year-old police officer.

In reviewing a claim of insufficient evidence, this court examines the record in the light most favorable to the verdict, assuming that the jury believed the state’s evidence and disbelieved any contrary evidence. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985). If the jury, acting with due regard for the presumption of innocence and the need for overcoming it by proof beyond a reasonable doubt, could reasonably find the defendant guilty, this court will not reverse the conviction. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

The statute prohibits the solicitation of a “child,” defined as a person aged 15 or younger, to engage in sexual conduct. Minn.Stat. § 609.352, subd. 1(a), (2) (2000). The statute defines the prohibited act as soliciting “a child or someone the person reasonably believes is a child.” Id., subd. 2 (2000). The term “solicit” is defined as:

Commanding, entreating, or attempting to persuade a specific person, by telephone, by letter,, or by computer or other electronic means.

Id., subd. 1(c) (2000) (emphasis added).

Coonrod argues that the state failed to prove that he solicited a “specific person” or that he reasonably believed that person to be a child. Coonrod also argues that the evidence was insufficient to prove that he intended to engage in sex with “Jaimel4.” The first argument presents an issue of statutory construction.

Coonrod argues that the statutory language requiring solicitation of a “specific person” requires solicitation of an actual person and therefore precludes criminal liability for soliciting a fictional persona such as “Jaimel4.”

In construing statutes, this court looks first to the plain language of the statute. State v. Furman, 609 N.W.2d 5, 6 (Minn.App.2000). If the literal meaning of the statutory language is not conclusive, or if the language is ambiguous, the court looks to other indicia of legislative intent. See Park Towers Ltd. P’ship v. County of Hennepin, 498 N.W.2d 450, 454 (Minn.1993). Also, we agree with appellant that penal statutes must be strictly construed, and all reasonable doubt about their meaning must be resolved in favor of the defendant. State v. Wagner, 555 N.W.2d 752, 754 (Minn.App.1996). But this court is not required to give a statute the narrowest possible interpretation. Id.

The term “specific person” does not denote an “actual person.” See American Heritage Dictionary 1730 (3d ed.1992) (defining “specific” as “[explicitly set forth; definite”). The term “person” is not defined in the criminal code. A corporation has been held to be a “person” for purposes of the harassment-restraining-order statute. Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260, 262 (Minn.App.1995). For purposes of construing statutes, generally, the term “person” may include partnerships, associations, and corporations. Opal Corp. v. American Family Ins. Group, 518 N.W.2d 642, 644 (Minn.App.1994) (citing Black’s Law Dictionary, 1162 (6th ed.1990)); see generally Minn. Stat. § 645.44, subd. 7 (2000).

“Jaimel4” was not a corporation or other legal entity. But like those entities, she was not a flesh-and-blood human being either. Coonrod points to no language in the statute, or in the case law, that excludes a fictional persona such as “Jaimel4” from the definition of a “person,” or a “specific person.” This court cannot supply language that the legislature has purposefully omitted or overlooked. In re Rapp, 621 N.W.2d 781, 786 (Minn.App.2001). The courts will not infer that the legislature intended an absurd result. State v. Murphy, 545 N.W.2d 909, 916 (Minn.1996). A few examples will illustrate the point. “Sting,” or “undercover,” or “decoy” operations are not uncommon. When a drug dealer has drugs to sell and is “sucked” into an undercover operation, the second he hands over the drugs to an undercover agent in exchange for money, the badge and handcuffs come out, and two things will happen: (a) he will not get to keep the money, and (b) he will not be able to argue that he can be guilty at most of mere possession rather than possession with the intent to sell, or a completed sale, because he had no chance to execute a bona fide sale. Exactly the same is true with undercover operations aimed at arresting prostitutes or their “johns.” Law enforcement would be in a high state of consternation if real prostitutes and real johns had to be used and if the possibility of a full successful completion of the transaction had to be present! Coonrod’s argument, followed to its logical extreme, would demand that the state, when investigating the type of crime he is charged with, employ actual young girls to type the chat room text, to meet with the suspect, and to follow through with everything needed to get the suspect to the point of an overt act. We simply will not read that into the law.

The purpose of the child-solicitation statute is “to prohibit any persuasive conduct by adults that might entice children to engage in sexual activity.” State v. Koenig, 649 N.W.2d 484, 488 (Minn.App.2002). Solicitation in itself is an “inchoate activity” that extends to a broad range of conduct. State v. McGrath, 574 N.W.2d 99, 102 (MinnApp.1998), review denied (Minn. Apr. 14, 1998). The statute explicitly extends that range of conduct to communications by computer. MinmStat. § 609.352, subd. 1(c) (2000). Sending e-mails and chat room “whispers” to a specifically identified computer persona with the aim of engaging that person in sexual activity fits within the purpose and language of the statute. The legislature, by requiring that the solicitation be to a “specific person,” intended to exclude general messages broadcast to wider audiences, such as personal ads or bona fide media content. There is no reason to believe, however, that the legislature, having forbidden “solicitation” by computerized means, intended to exclude messages directed at a specific computer identity or “persona” that a defendant believed represented a person who was underage.

Coonrod also argues that the evidence is insufficient to prove that he reasonably believed “Jaimel4” to be a child or that he intended to engage in sex with her. But these arguments assume the credibility of Coonrod’s own testimony, particularly his testimony that he knew the person who called him, and who stood on the street corner to meet him on September 20, was an adult female. Assessing the credibility of witnesses is within the exclusive province of the jury. See State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The state presented evidence that Coonrod put in one of his first “whispers” to “Jaimel4”: “Just 14 and fun?” The profile for “Jaimel4” showed that she was a 14-year-old female, and the picture sent to Coonrod was of a 14- or 15-year-old girl. The state also presented evidence that Coonrod sent sexually explicit messages to “Jaimel4” almost from the beginning, suggesting they meet to have sex in his apartment. Coonrod not only suggested “Jaimel4” phone him, he suggested a meeting, eventually appeared for a meeting, and actually led the undercover officer toward his truck. This evidence was sufficient to support the factfinder’s determination that Coonrod solicited a child to engage in sexual conduct. Therefore, he may be retried for that offense. See generally State v. Harris, 533 N.W.2d 35, 36 n. 1 (Minn.1995) (holding double jeopardy bars further prosecution of defendant whose conviction has been reversed because the evidence is insufficient as a matter of law).

DECISION

The trial court committed reversible error in admitting Spreigl evidence without pretrial notice and without a cautionary instruction on the basis that since the evidence was found through a valid search warrant, relevancy did not matter.

The court did not abuse its discretion in instructing the jury.

The evidence revolving around a fictitious persona would have supported a conviction for the charged offense.

Reversed and remanded.

      . This is not to say that sting and undercover operations are "a golden child” and unduly favored by the courts. They are not, and the affirmative defense of entrapment is always on the table; it is said rather to point out that sting operations and related deceptive practices by law enforcement are permissible as long as proper boundaries are observed.


source: Caselaw Access Project

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

license: Public Domain

text:
    2002 SD 119
    STATE of South Dakota, Plaintiff and Appellee, v. Richard HERRMANN, Defendant and Appellant.
    No. 22045.
    Supreme Court of South Dakota.
    Considered on Briefs March 25, 2002.
    Reassigned Aug. 5, 2002.
    Decided Oct. 2, 2002.
    Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Terry J. Sutton and Tracy J. Niemann of Sutton & Bauer Law Office, Watertown, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice (on reassignment).

[¶ 1.] When an officer mistakenly requires an arrested driver to submit to a blood test because a law enforcement dispatcher erroneously reports that the driver has multiple prior convictions, should the trial court suppress the blood test results or simply deprive the prosecution of the use of the statutory presumptions? Because there was no constitutional violation here in seizing the driver’s blood, we adhere to our longstanding precedent and hold that the correct sanction for the erroneous seizure is to deny the State the use of the statutory presumptions as evidence. We also determine that the arresting officer had sufficient reasonable suspicion to stop the driver, founded on an anonymous tip and the driver’s speeding. We affirm.

Background

[¶ 2.] Trooper Rick Steiner, a thirteen-year veteran of the South Dakota Highway Patrol assigned to the Watertown area, was on duty on the night of October 6, 2000. At the end of his shift at approximately 11:22 p.m., he was pulling into the parking lot of the law enforcement center in Watertown when he received a message from dispatch: an unknown person had called, “advising of a possible intoxicated driver” driving a 1962 yellow Chevrolet pickup southbound on Sioux Conifer Road near Watertown. Dispatch also provided Steiner with the license number of the vehicle. Steiner immediately proceeded west on Highway 20 and, as he approached the intersection with Sioux Conifer Road, he observed the vehicle described by dispatch turn from the road onto the highway. The vehicle pulled into an eastbound lane of the four-lane highway and headed toward Watertown traveling in the opposite direction as Steiner.

[¶ 3.] Steiner met and passed the other vehicle and then made a U-turn through the median and followed it. The trooper confirmed that the license number of the vehicle matched the one given by dispatch and kept pace with it as it passed into a thirty-five mile per hour zone. Steiner was traveling at approximately forty-five miles per hour and used his radar to confirm his own speed. Based upon that information, he formed the opinion that the other vehicle was speeding. Thus, at approximately 11:27 p.m., about five minutes after receiving the initial call from dispatch, Steiner activated his red lights and pulled the speeding vehicle over.

[¶ 4.] Steiner approached the driver, asked for his driver’s license, and identified him as Herrmann. When Steiner asked Herrmann if he had been drinking, Herrmann replied that he had not. Nevertheless, Steiner noted that Herrmann had an odor of an alcoholic beverage and watery, glassy eyes. Steiner instructed Herrmann to come back to the patrol car where he asked him how much he had to drink. Herrmann replied that he had a couple of beers. At that point, Steiner could still smell an alcoholic beverage odor, so he asked Herrmann to perform some field sobriety tests. When Herrmann’s performance on these tests proved unsatisfactory, Steiner placed him under arrest for driving while under the influence (DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings. Herrmann refused to submit to a blood test as requested in the implied consent warnings. However, Steiner was advised by dispatch at about the same time that Herrmann had two DUI convictions in the previous five years. With that information, Steiner informed Herrmann that a blood test was mandatory and took him to the local hospital where blood was drawn. Herrmann was then transported to a local detention center.

[¶ 5.] Herrmann’s blood test yielded a result of 0.171 percent by weight of alcohol. Accordingly, he was charged with one count of driving or actual physical control of a motor vehicle while under the influence of an alcoholic beverage (SDCL 32-23-1(2)). A part two information was also filed alleging that Herrmann had two prior DUI convictions. The information was later amended to allege only one prior conviction. Before trial, Herrmann’s counsel moved to suppress all evidence obtained as a result of the stop of Herrmann’s vehicle on the basis that the stop was illegal. After a hearing, the trial court entered a memorandum decision, findings of fact, conclusions of law, and an order denying the motion to suppress.

[¶ 6.] On the first day of trial, Herr-mann’s counsel filed a motion to suppress the blood test results for violation of Herr-mann’s right to refuse the test. Counsel argued that, despite the dispatcher’s advice at the time of the arrest that Herr-mann had two prior DUI convictions and thus could not refuse the test, Herrmann had only one prior DUI conviction. Therefore, counsel contended that Herr-mann had a right to refuse the blood test and that its administration over Herr-mann’s refusal required suppression of the results. The trial court denied the motion to suppress. However, the court also denied the State the benefit of a jury instruction on the statutory presumptions of intoxication that result from a blood alcohol test. See SDCL 32-23-7.

[¶ 7.] Following a jury verdict of guilty, Herrmann admitted Ms status as a second time DUI offender. The circuit court sentenced him to ninety days in the county jail with seventy-five days suspended and a fine of $375. He was also required to reimburse certain costs and expenses. Herrmann appeals, asserting two issues: (1) Was the unreliable anonymous tip corroborated by the officer, thereby providing an articulable and reasonable suspicion for the initial stop? (2) Should the blood test result be suppressed due to a State dispatch officer’s error, regarding the number of prior DWI convictions, which eliminated Herrmann’s right of refusal?

[¶ 8.] Reasonable Suspicion to Stop Vehicle.

[¶ 9.] A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (citations omitted). We review findings of fact under the clearly erroneous standard. Id. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Id.

[¶ 10.] Herrmann argues that trooper Steiner stopped his vehicle without reasonable suspicion of a violation of law and that, as a result, the stop was illegal. See State v. Faulks, 2001 SD 115, ¶ 8, 633 N.W.2d 613, 616. He contends that the trial court should have suppressed all evidence seized after the stop. Contrary to Herrmann’s assertions, however, Trooper Steiner had two reasons for stopping Herrmann’s vehicle: the anonymous tip to law enforcement and Herrmann’s speeding. The anonymous tip provided trooper Steiner with a reasonable suspicion that Herrmann was driving while under the influence of an alcoholic beverage and gave Steiner an articulable basis to stop the vehicle.

[¶ 11.] A similar case was presented in State v. Olhausen, 1998 SD 120, ¶ 8, 587 N.W.2d 715, 718. In Olhausen, an anonymous caller reported a possible drug deal on East Rice Street in Sioux Falls, named the suspect involved, gave a cursory description of him, described the car involved, and gave its license plate number. These facts were relayed to a law enforcement officer in the area who spotted the car and noted that the front seat passenger fit the description of the suspect. In upholding the stop, we observed:

[The officer] was able to independently corroborate the tip and verify the information before he made the stop: the BMW fit the tipster’s description, the license plate number matched the number reported by the tipster, and the car was located close to East Rice Street. Lastly, [the officer] testified that, as he drove by, he could see that the passenger in the front of the vehicle met the description given to him of [the suspect]. The motion to suppress was properly denied.

Id. Almost all these factors are present here. The unique vehicle, a 1962 yellow Chevrolet pickup, fit the tipster’s description, the license plate number matched the number reported by the tipster, and the vehicle was located turning off of Sioux Conifer Road, the location identified by the tipster. Clearly the stop was not the product of the trooper’s whim, caprice, or idle curiosity. See id.

[¶ 12.] Another similar case was presented in State v. Lownes, 499 N.W.2d 896, 900 (S.D.1993). There, an anonymous caller informed the police dispatcher in Rapid City that he thought someone named Mike had been drinking and was driving under the influence. The caller further informed dispatch that “Mike” did not possess a license, was out on bond from a previous DUI, had just left the Piedmont area driving a Harley Davidson motorcycle with red tanks and black saddlebags, was heading east on Interstate 90 to the West Boulevard exit to Rapid City and that he would proceed to Allen Street. These facts were relayed to a Highway Patrol Trooper and, approximately fifteen minutes later, the trooper stopped a vehicle matching the caller’s description in the area the caller had identified. In reviewing the stop on appeal, we wrote:

Trooper Welch received specific information relayed from a concerned citizen about a suspected violation of the law. The information included a description of a distinctive motorcycle, the name of the driver, the location the motorcycle left from, a direction and highway route for the motorcycle, the particular exit the bike would use to exit the highway and a specific street destination. When the officer looked for a motorcycle matching the given description, driven by a man, proceeding down the indicated highway in the direction predicted — he found it. After Trooper Welch verified significant aspects of the information, there existed adequate reasonable suspicion to justify a Terry stop.
We find the trial court did not err in denying Lownes’ motion to suppress evidence derived from the stop of the motorcycle.

Id.

[¶ 13.] A like conclusion is required here. Trooper Steiner received specific information relayed from a concerned citizen about a suspected violation of the law. The information included a description of a distinctive pickup, the location the pickup left from, and the direction and route of the pickup. When, only five minutes later, the trooper looked for a pickup matching the given description proceeding down the indicated roadway in the direction provided, he found it. Thus, there existed adequate reasonable suspicion to justify the stop of the pickup.

[¶ 14.] In addition to the foregoing, Steiner saw Herrmann speeding. Although Herrmann attempts to exclude this aspect of the stop on the basis that Steiner did not independently verify his speeding by radar, such verification is not required even to sustain a speeding conviction. In State v. Macy, 294 N.W.2d 435, 436 (S.D.1980), we upheld a speeding conviction where the pursuing officer paced the defendant’s vehicle for approximately a mile traveling at a rate of eighty-five miles per hour. In reviewing the sufficiency of the evidence on appeal, we wrote:

The defendant denied he was speeding. It is his position on appeal that since the state trooper did not activate his radar unit he failed to utilize the most scientific means at his disposal to establish credible evidence as to speed. It appears, however, from other evidence that the radar units in the South Dakota Highway Patrol cars cannot be used to clock the speed of a car traveling in the same direction.
A review of the record persuades us that there was substantial evidence whereby the defendant could be found guilty as charged beyond a reasonable doubt.

Id. If radar verification of speeding is not essential to sustain a conviction under the “beyond a reasonable doubt” standard, clearly it is not essential to sustain a vehicle stop under the lower “reasonable suspicion” standard.

[¶ 15.] With the anonymous tip about Herrmann’s driving while under the influence in combination with his speeding violation committed in trooper Steiner’s presence, reasonable suspicion of a violation of law existed sufficient to support the stop of Herrmann’s vehicle. See State v. Thompson, 295 N.W.2d 8 (S.D.1980)(radio call detailing information about a possible drunk driver and sheriffs pursuit of speeding vehicle for three miles gave cause for investigatory stop of vehicle). The trial court did not err in denying Herrmann’s motion to suppress evidence on this foundation.

[¶ 16.] Sanction for Improper Blood Seizure

[¶ 17.] In his second issue, Herr-mann argues that the trial court erred in denying his motion to suppress his blood test result as evidence for violation of the implied consent law and his statutory right to refuse the test. See SDCL 32-23-10. However, within constitutional limits, a person can be forced to submit to a test of bodily fluids, so long as the seizure is (1) incident to a lawful arrest, (2) taken by a reliable and accepted method, (3) in a medically approved, reasonable manner, and (4) with probable cause to believe the evidence sought exists. State v. Nguyen, 1997 SD 47, ¶ 10, 563 N.W.2d 120, 122 (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)). Here, the trial court specifically found that the four Schmerber requirements set forth above were met, and Herrmann does not challenge that finding on appeal. Thus, there was no constitutional impediment to admission of the blood test results in evidence.

[¶ 18.] Concerning the violation of the implied consent law and Herrmann’s statutory right to refuse the blood test, we noted in Nguyen that in felony cases it has

never held that suppression of the blood evidence was the proper sanction for failure to comply with the implied consent statute. In prior felony cases, we have determined the penalties of 1) prohibiting the State from revoking the license of the driver, and 2) refusing to permit the use of the statutory presumptions at trial, sufficiently deter police from seizing blood evidence without the implied consent warning.

Nguyen, 1997 SD 47 at ¶ 16, 563 N.W.2d at 124 (footnote added). Thus, in State v. Jacobson, 491 N.W.2d 455 (S.D.1992), where it appeared that the arresting officer may have acted in bad faith in failing to investigate whether a DUI suspect had sufficient prior convictions to require forfeiture of his statutory right to refuse the blood test, we held that the remedy would only extend to the loss of the State’s right to revoke the suspect’s license for refusing the blood test and the State’s forfeiture of the statutory “under the influence presumptions.” Jacobson, 491 N.W.2d at 459.

[¶ 19.] A blood test is arguably the best evidence for a jury to consider when deciding whether a driver was under the influence of alcohol. Peterson v. State, 261 N.W.2d 405, 408 (S.D.1977). It is true that in 1976 this Court decided that a chemical analysis for blood alcohol content should be suppressed if the State failed to comply with the implied consent law. State v. Buckingham, 90 S.D. 198, 240 N.W.2d 84 (1976). A year later, however, the issue was reexamined in State v. Hartman, 256 N.W.2d 131, 134-135 (S.D.1977). There, we held that despite the fact that the Legislature created a specific right for a driver to refuse to submit to a test to determine the blood alcohol content of his blood, failure to comply with the procedure set forth in the implied consent statutes does not require suppression of the test results, as long as the testing procedure complied with the driver’s constitutional rights. There was no constitutional violation here.

[¶ 20.] We discern no need to increase the sanctions when police officers make good faith but mistaken violations of the implied consent laws. Considering the relatively few instances where this issue has arisen out of the thousands of DUI arrests that have occurred in this state, we have little indication that South Dakota’s law enforcement officers are routinely disregarding the law. On the contrary, all indications are that officers are complying with the implied consent law. As the Wisconsin Supreme Court wrote in State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427, 434 (Wis.1987), “[t]he implied consent law is an important weapon in the battle against drunk driving in this State. Neither the law, its history or common sense allows this court to countenance its use as a shield by the defense to prevent constitutionally obtained evidence from being admitted at trial.” Denying the State the use of the statutory presumptions is enough of a sanction, especially considering the gravity of the problem with intoxicated drivers on our roads.

[¶ 21.] The circuit court found that trooper Steiner acted in good faith in requiring the blood test and required the State to forfeit the benefit of the statutory under the influence presumptions. This was in full accord with settled law and, therefore, the court committed no error in denying Herrmann’s motion to suppress his blood test results as evidence.

[¶ 22.] Affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and GORS, Acting Justice, concur.

[¶ 24.] SABERS, Justice, and AMUNDSON, Justice, concur in part and dissent in part.

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

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 26.] I concur on Issue One but dissent on Issue Two. I would hold that the trial court erred in denying Herrmann’s motion to suppress his blood test result as evidence because of the violation of the implied consent law and Herrmann’s statutory right to refuse the test. See SDCL 32-23-10(1) which provides:

If the person refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless the person has been arrested for a third, fourth, or subsequent violation of § 32-23-1, constituting a felony offense under § 32-23^1 or 32-23-4.6 or has been arrested for vehicular homicide under § 22-16-41 or vehicular battery under § 225 — 16—42[.]

[¶ 27.] The statement from Nguyen, quoted in the majority opinion, that this Court has never held suppression of blood evidence to be the proper sanction for failure to comply with the implied consent law does not completely or accurately represent the history of the implied consent law. In fact, this Court held at one time that suppression of evidence was the proper sanction for noncompliance with the implied consent law. In Buckingham, 90 S.D. at 204-205, 240 N.W.2d at 87 this Court made the following observations in this regard:

[T]he failure of the arresting officer to comply with the requirements of SDCL 32-23-10 [i.e., the implied consent law] rendered the test results inadmissible at defendant’s trial.... In reaching this result, we look ... to the letter of the law. It is difficult to see how the legislature could have been more specific in setting forth the procedure that arresting officers must follow when they seek to utilize the powerful evidence-gathering mechanism conferred upon them by SDCL 32-23-10, the implied consent statute. True, our statute does not expressly state that the failure of the officer to comply with the procedural steps will render the test results inadmissible, as do some implied consent statutes. Implicit in our implied consent statute, however, is the right to refuse to submit to a test and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. Also implicit in the implied consent law is the assumption that the choice to be made is of considerable importance to the arrested driver. Although it may be true that to some drivers the loss of their license for a period of one year would be a penalty more severe than being convicted of the offense of driving while intoxicated, there no doubt are some who would rather suffer the loss of their license for one year than to suffer the ignominy of a conviction for driving while intoxicated, together with the adverse economic consequences such a conviction entails. If the offense of driving while intoxicated is considered serious enough to warrant the constitutional guarantee of a jury trial, then surely it is serious enough to require law enforcement officers to comply with the statutorily mandated procedural steps as a prerequisite to the admissibility of the results of a chemical test conducted pursuant to the implied consent law. (some citations omitted).

[¶ 28.] Only a year after Buckingham, this Court reconsidered its holding as to the suppression of evidence with the following analysis:

[E]vidence obtained in violation of statutory rights is not inadmissible per se unless the statutory rights are of constitutional proportions or there exists no other method of deterring future violations of the rights which the legislature has granted to its citizens.
* * *
Our implied consent law does not provide that the bodily substance sample or test results are inadmissible at a subsequent prosecution where the sample is obtained without compliance with the implied consent statutes, as some states have done. However, it appears that the implied consent statutes within themselves provide a sufficient deterrent to violation of the implied consent statutes by police officers without excluding this highly probative evidence.
If there is not substantial compliance with the implied consent statutes, the department of public safety cannot revoke or suspend the operator’s driving privileges for refusing to submit to such tests. Furthermore, noncompliance with the implied consent statutes, although not making the test sample and test results inadmissible, results in a forfeiture of the statutory presumptions of SDCL 32-23-7. Therefore, the physiological effects of the blood alcohol content upon the defendant must be proven by the testimony of a properly qualified expert, not by statutory presumptions. As expressed in State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973) the jury should only be instructed concerning the presumption of intoxication where properly administered test results are available. Proper administration requires substantial compliance with the implied consent statutes. In this case, there was no compliance with the implied consent statutes; however, all of the Fourth Amendment requirements of Schmerber were met, i.e., a lawful arrest, probable cause, a reliable method, and a reasonable, medically accepted removal of defendant’s blood. The blood sample and the test results were therefore admissible but not the subject of the statutory presumptions of physiological effects of blood alcohol content.

Hartman, 256 N.W.2d at 135-36.

[¶ 29.] This Court is now at a juncture where its analysis in Buckingham has proven to be more accurate than that in Hartman. Subsequent cases before this Court establish that inability to revoke driving privileges and forfeiture of statutory presumptions of intoxication are inadequate means of consistently deterring law enforcement violation of the implied consent law. In Hartman itself, this Court noted that a DUI prosecution under SDCL 32-23-l(l)(driving with 0.10 percent or more by weight of alcohol in the blood) would not be subject to the same deterrent effect as a DUI prosecution under SDCL 32-23-l(2)(driving under the influence) and that the exclusionary rule might be needed in a prosecution under subsection (1) if the implied consent statutes were not complied with. See Hartman, 256 N.W.2d at 135, n. 12. That was exactly the case in Parker, supra at n. 6 where the arresting officer failed to read the implied consent warnings, a blood test was taken and the defendant was later charged with a violation of SDCL 32-23-1(1). On these facts, this Court held that it was reversible error for the trial court to admit the defendant’s blood test result into evidence.

[¶ 30.] More disturbing than Parker; was Jacobson, supra where a blood test was administered pursuant to the arresting officer’s instruction that the test was mandatory. However, the record failed to reflect any steps taken by the officer to confirm that the arrest was for the defendant’s third DUI: Moreover, the officer’s testimony was inconsistent and incredible as to whether or not he knew the arrest was for a third DUI when the test was administered. Nevertheless, the blood test result was admitted into evidence and a jury instruction on the statutory presumptions of intoxication was given over the defendant’s objection. On these facts, this Court reversed the defendant’s conviction for third offense DUI and remanded the matter to the trial court with instructions to determine whether the arresting officer had information prior to administration of the test that the arrest was for a third DUI. If it was determined that he did not have such information, this Court directed that a new trial be held and that the State be penalized for its noncompliance with the implied consent law with the loss of its right to revoke the defendant’s driving privileges and with the forfeiture of the statutory presumptions of intoxication under SDCL 32-23-7.

[¶ 31.] The law enforcement failures represented in the above cases and the breakdown in law enforcement procedure in the instant case establish that the time has come for reconsideration of our holding in Hartman and for the imposition of a more severe sanction for noncompliance with the implied consent law.

[¶ 32.] Notwithstanding elimination of the right to refuse a chemical test in arrests for vehicular homicide and third offense DUI, the implied consent law remains an important feature of South Dakota law extending to South Dakota motorists a right not guaranteed by the Constitution, “i.e., the right to refuse to submit to a chemical test of their bodily substances for a determination of blood alcohol content.” Hartman, 256 N.W.2d at 135. Through the implied consent law, the South Dakota Legislature has enunciated a public policy that continues to grant this right of refusal to individuals who have a prior DUI conviction. See SDCL 32-23-10(1). Today’s majority rewrites that policy by denying Herr-mann his right of refusal and by permitting law enforcement to bypass that right whenever officers have a so called “good faith” belief that a person has more than one prior DUI conviction. Such a significant amendment of a clearly defined public policy should be left to the legislature that adopted the policy and should not be dictated by this Court.

[¶ 33.] A proper ruling in this case would not unfairly hamper DUI prosecutions in cases of this nature, but would place them on a proper footing. The implied consent law imposes special demands on law enforcement. As noted in Buckingham, 90 S.D. at 208-209, 240 N.W.2d at 89, the implied consent law imposes requirements on law enforcement “beyond those mandated by the Schmerber case. To hold otherwise would be to permit law enforcement officers to render [the implied consent law] nugatory at their whim.”

[¶ 34.] What this Court wisely foresaw in Buckingham is the precise scenario that has unfolded. In the present case, upholding admissibility of the blood test result once again permits law enforcement to render the implied consent law nugatory by acts of negligence and carelessness if not purposeful noncompliance. Contrary contentions that forfeiture of the statutory presumptions of intoxication adequately penalizes the State for its violation of the implied consent law are meritless in light of the body of common knowledge that education and public debate have engendered on the meaning of a 0.10 or 0.08 percent blood-alcohol test result. Therefore, to the extent that Hartman and its progeny hold that suppression of blood test results is not required for violation of the implied consent law, they should be overruled. If such a , conclusion were reached, the following observation from Buckingham would again become relevant:

If .the legislature desires that a motorist arrested on a charge of driving while intoxicated shall no longer have the right to choose between consenting to a test and losing his license, then presumably the legislature will say so in terms as clear as it used in spelling out a motorist’s rights under [the implied consent law].

Buckingham, 90 S.D. at 209, 240 N.W.2d at 89.

[¶ 35.] The Court’s decision is rewarding law enforcement for acts of negligence and carelessness in violation of the driver’s statutory right to refuse the blood test. Why should law enforcement reap the benefits of its own acts of negligence and carelessness in violation of the law? The answer is obvious: they should not be able to do so. The Court’s decision should enforce the law as it is until the legislature changes it.

[¶ 36.] Based upon the foregoing, I dissent from the Court’s decision on Issue Two and would hold that the trial court erred in denying Herrmann’s motion to suppress his blood test result as evidence and that a fair trial is required.

[¶ 37.] AMUNDSON, Justice, joins this special writing.

      . The implied consent warnings are contained in SDCL 32-23-10, which provides:

        Any person who operates any vehicle in this state is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person's blood, breath, or other bodily substance to determine the amount of alcohol in the person's blood and to determine the presence of marijuana or any controlled drug or substance.
      The person shall be requested by the officer to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical analysis of the person's breath and shall be advised by the officer that:
      (1) If the person refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless the person has been arrested for a third, fourth, or subsequent violation of § 32-23-1, constituting a felony offense under § 32-23-4 or 32-23-4.6 or has been arrested for vehicular homicide under § 22-16-41 or vehicular battery under § 22-16-42;
      (2) If the person refuses to submit to the withdrawal or chemical analysis, the person’s driver’s license shall be revoked for one year, unless pursuant to § 32-23-11.1 the person pleads guilty to a violation of § 32-23-1 or 32-23-21, prior to a revocation order being issued; and
      (3)The person has the right to have a chemical analysis performed by a technician of the person's own choosing at the person's own expense, in addition to the test requested by the officer.

      . Under the implied consent law, a person being arrested for a third, fourth or subsequent DUI offense has no right to refuse to submit to a blood test. See SDCL 32-23-10(1) at n. 1, supra.

      . At the time of Herrmann’s arrest and conviction, SDCL 32-23-7 (Supp. 2001) provided:
      In any criminal prosecution for a violation of § 32-23-1 relating to driving a vehicle while under the influence of intoxicating liquor, a violation of § 22-16-41, or a violation of § 22-16-42, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, breath, or other bodily substance shall give rise to the following presumptions:
      (1) If there was at that time five hundredths percent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
      (2) If there was at that time in excess of five hundredths percent but less than ten hundredths percent by weight of alcohol in the defendant’s blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
      (3)If there was at that time ten hundredths percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
      Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 1.0 cubic centimeters of whole blood or 2100 cubic centimeters of deep lung breath.

      . The final amended judgment in the settled record recites that Herrmann was convicted after a guilty plea and makes no specific mention of his admission of his status as a two-time DUI offender. This recitation is clearly controverted by the settled record and the parties' version of the facts and, accordingly, we disregard it as a drafting error.

      . Herrmann was issued a warning for the speeding violation.

      . The only cases where this Court has held that blood test evidence should have been suppressed for violation of the implied consent law have involved prosecutions under SDCL 32-23-1(1), driving or physical control of a motor vehicle with 0.10 percent or more by weight of alcohol in the blood. See State v. Parker, 444 N.W.2d 42 (S.D.1989). This is because loss of the statutory presumptions of intoxication is no deterrent to noncompliance with the implied consent law in prosecutions under this provision. As noted in State v. Tucker, 533 N.W.2d 152, 155 (S.D.1995), the State’s benefit from the admission of improperly obtained blood test results in prosecutions under SDCL 32-23-1(1) is obvious. Therefore, suppression of the blood test evidence in such cases has been found necessary. See Parker, supra. This case did not involve a prosecution for violation of SDCL 32-23-1(1).

      . By the lime of Jacobson, a blood test was mandatory on an arrest for third offense DUI.

      . See SDCL 32-23-10(1).


author: PER CURIAM.

text:
    2002 SD 120
    STATE of South Dakota, Plaintiff and Appellee, v. Janice STEVENSON, Defendant and Appellant.
    No. 22126.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided Oct. 2, 2002.

      Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, Hot Springs, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Janice Stevenson appeals her sentence for one count of second degree arson. We affirm.

FACTS

[¶ 2.] In June 2001, Stevenson was charged with one count of second degree arson in connection with a devastating forest fire in the Black Hills in the summer of 2000. The charge was specifically related to the burning of a cabin owned by a couple in Custer County. Plea bargaining followed the filing of the charge and the State and Stevenson ultimately entered into a four page plea agreement. The agreement contained provisions requiring Stevenson to enter a guilty plea, to cooperate in the plea proceedings, to plead guilty in federal court to federal charges relating to the same fire and to agree to the maximum federal sentence for her federal offenses. For its part, the State agreed to grant Stevenson use immunity for any arson related disclosures during her debriefing and to request a seventeen year penitentiary sentence. In addition, the plea agreement contained the following specific provisions pertinent to this appeal:

3. [Stevenson] will fully and truthfully apprise law enforcement officials of her involvement with forest fires set in South Dakota for the years previous to 1993 including the specific names, dates, times and places surrounding such activities. Any material misrepresentation or omission made will result in revocation of the plea bargain agreement in the State’s discretion.
4. [Stevenson] will, at the request of law enforcement, voluntarily submit to a polygraph examination concerning her involvement with forest fires set in South Dakota for the years previous to 1993. [Stevenson’s] failure of this test may result in a revocation of this agreement in the State’s discretion.
This grant of immunity is expressly conditional upon [Stevenson’s] complete and open honesty in the scope of her cooperation with law enforcement. Any material misrepresentation or omission made by [Stevenson] to law enforcement shall be grounds for revocation of this agreement. If this agreement is revoked for any reason set forth in this agreement, [Stevenson] will lose her grant of immunity and will be prosecuted to the fullest extent of the law. In that event, any and all statements made or evidence obtained pursuant to this agreement, including any statements made during any court proceeding, may then be used against [Stevenson] consistent with United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).
The parties specifically acknowledge that the length and conditions of any sentence are solely within the discretion of the sentencing judge, and that no promises as to length or type of sentence have been made to [Stevenson] by the State.

[¶ 3.] The plea agreement was signed by Stevenson, her counsel and the prosecutor on the same date as Stevenson’s arraignment, May 25, 2001. During the arraignment, the trial court advised Stevenson of the charge, the maximum possible penalty, and her constitutional rights. Stevenson acknowledged her understanding of these matters. Stevenson’s counsel then explained various aspects of the plea agreement as did .the prosecutor who noted that, “the State is agreeing to ask for 17 years which would be concurrent, that Miss Stevenson would go serve her time in the Federal custody.” Prior to accepting Stevenson’s plea, the trial court initiated the following exchange to insure her understanding of the non-binding nature of the sentencing agreement:

THE COURT: You understand that I can impose — this is not binding on the Court, I assume.
MR. BACHAND [the prosecutor]: It is not, Your Honor.
MR. CONNELLY [defense counsel]: That’s correct.
THE COURT: I may, if I choose to, impose 25 years in the state penitentiary.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand that you may be forced to serve that if you don’t get parole or good time, that kind of thing?
THE DEFENDANT: I understand.

After this discussion, a factual basis was provided for Stevenson’s plea which was accepted by the trial court.

[¶ 4.] Following the arraignment and prior to sentencing, Stevenson submitted to a polygraph examination pursuant to the requirements of the plea bargain. During the course of that examination, Stevenson admitted her arson in three pri- or fires in Wyoming. However, she denied setting a pre 1993 fire in the Black Hills of South Dakota known as the “Westberry Trails fire.” The polygraph indicated Stevenson was untruthful in this denial.

[¶ 5.] At the sentencing hearing on August 22, 2001, the State presented testimony from the polygraph examiner to establish Stevenson’s deception and violation of the plea agreement. On that basis, the State sought leave to depart from its plea agreement to request a sentence of seventeen years. The trial court ruled from the bench that there had been a violation of the plea agreement sufficient to allow the State to withdraw its pledge not to seek an aggravated sentence. The State then presented testimony from the victim of the arson and, referencing the severity of the forest fire caused by Stevenson, argued for a lengthy penitentiary sentence to run consecutive to her federal sentence. Thereafter, the trial court heard a statement from Stevenson in which she expressed perfunctory remorse for her actions. The trial court then imposed its sentence with the following pertinent comments:

I’m not sentencing you today based upon whether you did or did not commit the other fire. I’m doing this solely based upon what you told me you have done and what the presentence investigation reveals, not the Westberry Trails fire because that’s not what we’re here for. The only reason that’s an issue is a question of truth, not a question of being a pyromaniae or being an arsonist.
* * *
[S]even percent of the state — the forest was lost, which is a huge chunk of the beautiful Black Hills which everyone here respects and appreciates. Forty-two million dollars in losses, direct losses. That doesn’t count the beauty and the critters and creatures and the grass and trees and the flowers and the decades it will take for those to commence or to return to where they were.
Only by the grace of God was someone not killed or injured seriously in this. Fire fighters risked themselves to keep it from spreading which it did because of the real abandoned area, the natural area. The isolated area it was able to grow and prosper, the fire was. You knew that when you started it.
I don’t accept you’ve taken responsibility for it.

[¶ 6.] With these and other similar comments, the trial court sentenced Stevenson to twenty-five years in the penitentiary, concurrent with her federal sentence, plus restitution. Stevenson appeals.

ISSUE

[¶ 7.] Was the trial court clearly erroneous in finding that Stevenson breached her plea agreement?

[¶ 8.] Stevenson advances several arguments to establish that the trial court was clearly erroneous in finding that she breached her plea agreement and that the State could depart from the agreement and seek an aggravated sentence.

[¶ 9.] Generally, plea agreements are contractual in nature and are governed by ordinary contract principles. See Margalli-Olvera v. I.N.S., 43 F.3d 345, 351 (8th Cir.1994). Whether a contract has been breached is an issue of fact for the trier of fact to resolve. Moe v. John Deere Co., 516 N.W.2d 332, 335 (S.D.1994). A trial court’s findings of fact are reviewed under the clearly erroneous standard. State v. Webster, 2001 SD 141, ¶ 19, 637 N.W.2d 392, 397.

[¶ 10.] Stevenson first contends that the trial court’s finding of a breach of the plea agreement is clearly erroneous because it entered no written findings or conclusions for this Court to review for the existence of clear error. This Court has previously expressed its preference for the entry of written findings of fact and conclusions of law on certain issues resolved by trial courts. See e.g. State v. Albright, 418 N.W.2d 292, 294 (S.D.1988)(Court insists on separate, appropriate and specific findings of fact and conclusions of law on suppression issues in order to aid appellate review and insure against speculation and conjecture). Notwithstanding such expressions, this Court has accepted verbal findings and conclusions where the record leaves no room for speculation and conjecture concerning what the trial court found or concluded. See e.g. State v. Hartley, 326 N.W.2d 226, 228 (S.D.1982)(whether findings and conclusions are formally entered or orally made on the record, they must be such that there is no room for speculation and conjecture concerning what the trial court found or concluded).

[¶ 11.] Here, a review of the record leaves no doubt that the basis of the trial court’s finding of a breach of the plea agreement was Stevenson’s failure of the polygraph examination. In that regard, the trial court specifically ruled from the bench as follows:

The Court takes the agreement as a contract between the parties. It ultimately in the mind of this Court sets up the opportunities for the State to set aside its agreement to not aggravate beyond the 17.5 in the event the State feels because it’s clear it’s discretionary that there is a violation of the agreement. The Court is cautious about the reliance or consideration of the polygraph which is a tool that is not exact in nature nor is it admissible generally speaking before the Court. But at least under these circumstances with the contract agreement between the parties and the defendant that there is basis for the State to believe that they have a right to and they could should they wish to withdraw their agreement not to seek greater than the 17.5. I find that there has been a violation sufficient to allow the State to withdraw its agreement not to aggravate.

Given these oral findings, there is no clear error in the trial court’s finding of a breach even absent written findings of fact and conclusions of law on the issue.

[¶ 12.] Stevenson next contends that there is clear error in the finding of a breach because the polygraph examiner did not have any investigative information about the Westberry Trails Fire when he questioned her. The relevance of argument over the examiner’s lack of investigative information is puzzling in light of the obligations imposed on Stevenson by the plea agreement and her performance of those obligations. Stevenson agreed to truthfully apprise law enforcement of her involvement with pre 1993 forest fires in South Dakota and to pass a polygraph examination concerning these matters. Pursuant to these requirements, the polygraph examiner testified that he asked Stevenson if she started the Westberry Trails Fire and she answered “no.” The examiner then asked Stevenson if she was the person who started the Westberry Trails Fire and, again, she answered “no.” Finally, the examiner asked if, other than some fires in Wyoming that Stevenson had already admitted setting, she had started any other wildland fires prior to 1993. Once more, Stevenson answered “no.” In evaluating these answers at the hearing on this matter, the examiner testified as follows:

Q We have the three questions you asked her. How many specific charts did you run? In other words, how many times did you go through this with her with those questions?
A With the Westberry Trails fire there are three charts that were produced.
Q What [were] the results on those charts?
A That she failed the questions involving the Westberry Trails fire.
Q Was it a close call?
A No.
Q What do you mean by that?
A Some charts are more difficult to evaluate. They can be evaluated. Some take longer just to look at more closely. This one is very identifiable as a fail chart. She flunked those questions involving the West-berry Trails fire.

Based upon the foregoing testimony, Stevenson’s failure of the polygraph and consequent breach of the plea agreement is clear. The examiner’s access to investigative information concerning the Westberry Trails Fire is of no relevance whatsoever to the inquiry. Additionally, Stevenson did not offer any evidence to challenge the results of the polygraph or show that it was improperly conducted.

[¶ 13.] Stevenson next argues that the trial court was clearly erroneous in finding that she breached the plea agreement because there was no evidence corroborating the polygraph to establish that she was dishonest or untruthful in her debriefing. In support of her contention, she cites U.S. v. Britt, 917 F.2d 353 (8th Cir.1990). Britt, however, is distinguishable from the instant case. Although the defendant in Britt agreed to cooperate in an investigation into the use, possession and trafficking of controlled substances and to take a polygraph as part of that cooperation, passage of the polygraph was not made a specific part of the bargain. Rather, passage was only one circumstance among a totality of the circumstances that the government could consider in determining whether the defendant was being complete and truthful and whether to declare the plea agreement null and void. Thus, the polygraph was only secondary evidence of the defendant’s compliance with the plea agreement in Britt. Here, Stevenson specifically agreed to pass the polygraph as part of her plea agreement. Therefore, the polygraph results in this case were direct evidence of her compliance or noncompliance with the agreement.

[¶ 14.] A second factor distinguishing this case from Britt is that one of the issues in Britt was whether polygraph results were admissible under the rules of evidence applicable to proceedings to vacate the defendant’s guilty plea. Rather than reaching this issue, the Eighth Circuit relied on the corroborative evidence of the defendant’s breach of the plea agreement to uphold the vacation of his plea. Important to the inquiry here, the court never held that the polygraph evidence was inadmissible in the absence of the corroborative evidence. Thus, Stevenson’s current argument over the necessity of corroborative evidence under Britt is misplaced.

[¶ 15.] As her last argument, Stevenson asserts that the trial court was clearly erroneous in finding that she breached the plea agreement because it based its finding on polygraph results that are inadmissible as evidence in South Dakota. However, Stevenson ignores that this case arises out of a sentencing proceeding and that the rules of evidence are inapplicable in sentencing hearings. SDCL 19-9-14(4). See also State v. Huettl, 379 N.W.2d 298, 304 (S.D.1985).

[¶ 16.] In support of her assertions, Stevenson cites a number of decisions in which this Court has rejected the admissibility of polygraph results as evidence. See State v. Muetze, 368 N.W.2d 575, 588 (S.D.1985); State v. Watson, 248 N.W.2d 398 (S.D.1976); State v. O’Connor, 86 S.D. 294, 301, 194 N.W.2d 246, 250 (1972). Stevenson also cites a series of out-of-state cases specifically holding polygraph results inadmissible in sentencing proceedings.

[¶ 17.] The cases cited by Stevenson are distinguishable in various respects from the current matter. In State v. Anderson, 293 Mont. 472, 977 P.2d 315 (Mont.1999), the polygraph was not administered pursuant to a specific part of the plea agreement. Rather, it was administered as part of a psyehosexual evaluation that the defendant had agreed to. In addition, Montana had a broad rule prohibiting the admission of polygraph evidence “in any proceeding.” See Anderson, 977 P.2d at 317. Landrum v. State, 977 S.W.2d 586 (Tex.Crim.App.1998), was not even a sentencing case. In Landrum, the Texas Court of Criminal Appeals denied discretionary review of a ruling prohibiting the defendant from presenting polygraph results to support his claim that he was under the influence of drugs when he gave a confession. The lower court had followed a rule holding polygraph evidence inadmissible per se. Romero v. State, 493 S.W.2d 206 (Tex.Crim.App.1973) also was not a sentencing case. In Romero, the defendant argued that the trial court erred in admitting polygraph results into evidence at trial pursuant to a pretrial stipulation. After a lengthy exploration of the issue of the admissibility of polygraph evidence, the Texas court held that, despite the stipulation, the trial court did err in admitting the evidence. Although Commonwealth v. Puchalski, 310 Pa.Super. 199, 456 A.2d 569 (Pa.Super.Ct.1983), was a sentencing case, the polygraph was not administered pursuant to a plea bargain, but at the behest of the sentencing court as-part of an additional presentence investigation. The reviewing court held the trial court erred in admitting the polygraph results because of a rule holding such results inadmissible “for. ‘any purpose[.]’ ” Puchalski, 456 A.2d at 573.

[¶ 18.] For many years, South Dakota, like the above jurisdictions, followed a general rule prohibiting the admission of polygraph results into evidence for any purpose. See State v. Waff, 373 N.W.2d 18, 24-25 (S.D.1985); Watson, supra; Muetze, supra; O’Connor, supra. In Satter v. Solem, 458 N.W.2d 762 (S.D.1990), however, this Court held that the trial court erred in admitting the defendant’s confession into evidence on the basis that it was coerced by the State’s unfulfilled promise to administer a polygraph and its promise not to object to introduction of the results into evidence at trial. This Court further held that, on retrial, the State could cure the inadmissibility of the confession by fulfilling its promises with regard to the polygraph. In his special writing in Satter, Justice Henderson observed that the holding was an implicit recognition of the admissibility of polygraph results into evidence by agreement. See Satter, 458 N.W.2d at 771 (Henderson, J., concurring in part and dissenting in part). On the retrial of Satter, the trial court followed this observation and ruled that a defendant “should not be prevented from waiving the protection of the rule on inadmissibility of polygraph examinations.” See State v. Satter, 1996 SD 9, ¶ 29, 543 N.W.2d 249, 255. On appeal after the retrial, this Court registered no criticism of that interpretation of its earlier ruling. See id.

[¶ 19.] The Satter cases yield a conclusion that polygraph results may be admitted in legal proceedings in this state according to the agreement or stipulation of the parties. See also State v. Watson, 248 N.W.2d 398, 399 (S.D.1976)(with only few exceptions, jurisdictions that have considered the matter have reaffirmed the rule that polygraph results are inadmissible in the absence of a stipulation by the defendant and the prosecution). Such an agreement or stipulation was reached here as part of Stevenson’s plea bargain where passage of a polygraph was made a significant part of the bargain and where proof of any breach would necessitate introduction of polygraph evidence. Accordingly, there was no clear error in the trial court’s finding of a breach predicated on the introduction of the polygraph evidence.

[¶ 20.] Based upon the foregoing, the trial court was not clearly erroneous in its finding that Stevenson breached the plea agreement and in permitting the State to depart from the bargain to argue for an aggravated sentence.

[¶ 21.] Affirmed.

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

       The arson was charged under SDCL 22-33-2 which provides: "Any person who intentionally sets fire to or burns or causes to be burned any occupied structure under circumstances which would not amount to arson in the first degree is guilty of arson in the second degree. Arson in the second degree is a Class 2 felony.” The maximum penalty for a Class 2 felony is twenty-five years in the state penitentiary and/or a twenty-five thousand dollar fine. SDCL 22-6-1(4).