author: ZINTER, Justice. SABERS, Justice

text:
    2007 SD 67
    STATE of South Dakota, Plaintiff and Appellee, v. Nicole Marie MULLIGAN, Defendant and Appellant.
    No. 24092.
    Supreme Court of South Dakota.
    Argued on March 19, 2007.
    Decided July 11, 2007.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Richard A. Sommers, Melissa E. Neville of Bantz, Gosch & Cremer, Aberdeen, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Nicole Mulligan was convicted of first degree manslaughter in the death of her boyfriend, Richard Goldade. She appeals claiming that: the State failed to prove criminal intent; her restitution sentence was illegal; a Batson violation occurred; and a spoliation of evidence instruction should have been given. We affirm.

Facts and Procedural History

[¶ 2.] On October 15, 2002, Mulligan shot Goldade with a .357 revolver in their home in Mobridge, South Dakota. Mulligan claimed that the shooting was accidental. According to her version of events, she was about to give her dogs a bath when Goldade came home from work. Mulligan was looking in a closet for towels to bathe the dogs and found the gun. She claimed that she wanted the gun moved because the couple’s three year-old son was starting to climb and he would go into the closet to get dog treats. She indicated that she covered the gun with a towel so her son would not see it. As she was handing it to Goldade to have him lock it in a gun cabinet, the gun discharged. The bullet hit Goldade in his chest and lodged in his back. Bob Rivera, a friend, was working on Mulligan’s computer in another room at the time of the shooting. He heard the shot, ran into the living room, and called 911. Before dying later that evening, Goldade made statements that the gun accidentally discharged.

[¶ 3.] The State’s version of the shooting was very different. It presented evidence that in his post-shooting statements, Goldade was unable to recall how the shooting occurred. There was also evidence that Mulligan’s stories were inconsistent. Initially, she said that she was holding the gun in one hand with the towels over the gun and her other hand over the towels. However, physical testing revealed that burn marks on the towels were inconsistent with all of the towels being on top of the gun. The tests indicated that at the time the gun discharged, it was between the towels. Mulligan then changed her story to match this physical evidence. There was also evidence that although all of the other guns in the house had ammunition in their magazines, none had rounds in the chamber. Therefore, the other guns could not have fired immediately (accidentally) as Mulligan claimed with respect to the .357 revolver.

[¶ 4.] The State also introduced evidence suggesting that Mulligan had a reason to kill Goldade. According to the State’s evidence, Mulligan filed for bankruptcy in 1997, primarily due to credit card debt. In the year preceding the shooting, and without Goldade’s knowledge, Mulligan had again amassed approximately $37,000 in credit card debt, much of it in Goldade’s name. In fact, Mulligan changed the addresses on some of Gol-dade’s credit cards to a post office box in Mobridge so that the statements did not come to the home. Mulligan had also forged Goldade’s name on various financial documents and written checks to herself on his account. There was evidence that had he discovered these facts, Goldade would have been extremely upset as it would have destroyed his plans to build a new home. Moreover, a letter written by Mulligan was introduced indicating that Goldade was contemplating making Mulligan and their son move out. Finally, the State offered physical evidence that this gun could not have discharged without the direct application of substantial pressure on the trigger.

[¶ 5.] Mulligan was charged in the alternative with first degree murder and first degree manslaughter. She did not object to the manslaughter charge. At trial, the primary issue was whether Mulligan accidentally or intentionally shot Gol-dade. A Batson challenge was also raised because the State struck all five Native Americans from the jury. The trial court ruled that the State had presented sufficient race-neutral reasons for the strikes. At the conclusion of the trial, a dispute arose over a spoliation instruction.

[¶ 6.] The jury convicted Mulligan of first degree manslaughter. She was sentenced to thirty-five years in the state penitentiary with seventeen years suspended. The trial court also ordered restitution for several things, including the money Mulligan stole from Goldade. Mulligan appeals raising four issues:

1. Whether the evidence of intent was sufficient to support a conviction of first degree manslaughter.
2. Whether, in the absence of an admission or conviction, the trial court’s order of restitution for theft was an illegal sentence.
3. Whether Mulligan’s constitutional rights of due process and equal protection were violated by the State’s use of peremptory strikes to remove Native Americans from the jury.
4. Whether the trial court abused its discretion and committed prejudicial error in refusing Mulligan’s proposed jury instruction on spoliation of evidence.

Decision

Sufficiency of the Evidence

[¶ 7.] Mulligan first contends that the State failed to prove the criminal intent necessary for first degree manslaughter. She concedes that the State produced motive evidence, but argues that the State failed to provide sufficient evidence of criminal intent. The standard of review for determining the sufficiency of the evidence is well settled.

“In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence. State v. LaPlante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310 (internal citations omitted). Thus, “[a] guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted).

State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305.

[¶ 8.] Mulligan was acquitted of first degree murder and convicted of first degree manslaughter. As is relevant here, homicide is murder in the first degree “[i]f perpetrated without authority of law and with a premeditated design to effect the death of the person killed.... ” SDCL 22-16-4. “Homicide is manslaughter in the first degree if perpetrated: Without any design to effect death ..., but by means of a dangerous weapon.... ” SDCL 22-16-15. Thus, in order to sustain the manslaughter conviction, the State must have proved that Mulligan acted without a design to effect the death of Goldade but did so by means of a dangerous weapon. The matter in dispute is whether the State proved that Mulligan acted with criminal intent.

[¶ 9.] Manslaughter does not require specific intent. See SDCL 22-16-15. It is a general intent crime. State v. Bittner, 359 N.W.2d 121, 128 (S.D.1984) (Morgan, J., concurring and dissenting) (stating “homicide ... is a specific intent crime ... and the manslaughter offenses are all general intent crimes.”). The difference has been described as follows:

Specific intent has been defined as meaning some intent in addition to the physical act which the crime requires, while general intent means an intent to do the physical act-or, perhaps, recklessly doing the physical act-which the crime requires.

State v. Schouten, 2005 SD 122, ¶ 13, 707 N.W.2d 820, 824 (quoting State v. Taecker, 2003 SD 43, ¶ 25, 661 N.W.2d 712, 718 (quoting State v. Barrientos, 444 N.W.2d 374, 376 (S.D.1989))). Therefore, to convict Mulligan of manslaughter, there must have been sufficient evidence to find that she intended to fire the gun or that she was reckless with respect to the shooting.

[¶ 10.] Mulligan points out that there was no evidence that she was reckless in her handling of the gun. Therefore, that method of proving intent is unavailable to sustain the manslaughter conviction. Mulligan then points out that the jury acquitted on the charge of first degree murder, which required proof of intent to kill Gol-dade. From this acquittal, Mulligan argues that the jury rejected the State’s sole contention at trial-that Mulligan intended to shoot Goldade in order to hide her debt. As Mulligan phrases it in her reply brief, “[w]e know that the jury rejected the notion that [Mulligan] intentionally shot [Gol-dade], as the jury rejected the murder charge.” Based on this assumption, Mulligan claims that she could not be convicted of manslaughter because that crime required intent to commit the physical act of shooting Goldade.

[¶ 11.] However, Mulligan may not use the jury’s rejection of the murder charge to infer that there was insufficient evidence to justify the manslaughter charge. The United States Supreme Court has expressly rejected such reasoning, holding “that a criminal defendant convicted by a jury on one count [can] not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count.” United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473, 83 L.Ed.2d 461, 464 (1984) (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)). Mulligan, however, points out that the State focused its entire case solely on the charge of murder, and therefore the jury must have rejected the intent to kill element when it acquitted her of murder. However, Powell also rejected this argument that examines the focus of the State’s case to determine whether the jury necessarily rejected an essential element of a lesser charge. The Supreme Court concluded that even when a case is not “presented to the jury under” the theory that would reconcile the verdicts (in this case manslaughter), a resulting inconsistency may not be utilized to suggest there was insufficient evidence. See id. at 61,105 S.Ct. at 475, 83 L.Ed.2d at 466. In discussing the reason for these holdings, the Supreme Court reiterated Justice Holmes’ reasoning in Dunn that nothing can be inferred from an acquittal on one of two interrelated charges because the jury may have disposed of the inconsistent charge through leniency. “ ‘Consistency in the verdict is not necessary’.... ‘We interpret the acquittal as no more than [the jury’s] assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ ” Id. at 62-63, 105 S.Ct. at 475, 83 L.Ed.2d at 467 (citations omitted). Although some of the Dunn Court’s analysis is no longer followed, Powell reaffirmed Dunn’s core holding that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” Id. at 64-65, 105 S.Ct. at 476, 83 L.Ed.2d at 468 (quoting Dunn, 284 U.S. at 393, 52 S.Ct. at 190, 76 L.Ed. at 359). Therefore, even though an acquittal may have been rendered on one offense that contains a necessary element of a lesser offense, the lesser conviction will stand because:

Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency.... [T]he mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility.

People v. Vaughn, 409 Mich. 463, 466, 295 N.W.2d 354, 355 (1980). See also People v. Arroyo, 38 A.D.3d 383, 833 N.Y.S.2d 18, 19 (2007) (stating that “what may appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency”).

[¶ 12.] These rules are applicable in cases like this where a defendant asserts jury error (Mulligan also contends the jury erred in determining that criminal intent was satisfied through negligent conduct, see infra ¶ 18) rather than jury leniency:

We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake.

Powell, 469 U.S. at 66, 105 S.Ct. at 477, 83 L.Ed.2d at 469. Thus, Mulligan has erroneously assumed that because of the acquittal of murder, the jury found that she did not intentionally fire the gun. Instead of speculating whether the inconsistent verdicts are evidence of jury error, appellate courts should review the sufficiency of the evidence to support the conviction that was rendered. Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470.

This review should be independent of the jury’s determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the [appellate] courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt.

Id.

[¶ 13.] Here, the State’s physical evidence, independent of the inconsistent verdicts, circumstantially established that the shooting was not accidental. The State also offered substantial circumstantial evidence that Mulligan had reason to intentionally shoot Goldade. Specifically, the evidence showed that: her theft was about to be disclosed; Goldade would not have reacted well to the disclosure; and she was about to be removed from the home by Goldade.

[¶ 14.] Mulligan, however, contends that this was evidence of motive and that evidence of motive is not evidence of intent. We agree that motive and criminal intent are not the same in a technical sense. See State v. Lassiter, 2005 SD 8, ¶ 42, n8, 692 N.W.2d 171, 182-183 (stating that “[m]otive is the ‘reason a person chooses to commit a crime,’ but it is not equivalent to the ‘mental state such as intent’ required to commit the crime.”). Nevertheless, the same evidence may often prove both motive and intent.

[T]here is no special evidence of intent ... apart from evidence of emotion, of knowledge, of design.... So if one is charged with wife murder, his ill feelings towards the wife would be an ingredient of criminal intent, and whatever evidence would be otherwise suitable to show motive (i.e., ill feeling) would be receivable also.

2 Wigmore, Evidence § 242 (Chadbourn rev.1979). Therefore, this Court must review the State’s evidence of Mulligan’s theft, Goldade’s impending discovery of the theft, Goldade’s intent to remove Mulligan from the home, and the physical evidence to determine whether it, and all favorable inferences that can be drawn therefrom, support the theory that Mulligan acted with intent to shoot Goldade.

[¶ 15.]The State’s evidence included the fact that Goldade was fiscally conservative and did not purchase things on credit. The evidence further suggested that there would have been trouble when Gol-dade discovered Mulligan was stealing from him. There was also evidence that Mulligan’s deception was about to be discovered. The State’s forensic accountant testified that Mulligan was only going to realize income of $17,147 per year, while having credit card and debt management program payments approaching approximately $1,000 per month. Finally, there was evidence that Goldade was going to make Mulligan and her son move out of the home.

[¶ 16.]In addition to this evidence of intent, the State’s physical evidence tended to establish that the revolver could not have fired accidentally. An expert testified that the revolver would not fire unless the trigger was pulled with significant force. Evidence was presented that the gun could be fixed as either a single or double action handgun, and that even in single action mode, it would have taken four to five pounds of pressure to fire. There were also burn marks on the towels that indicated that the gun had been held between the two towels when fired, evidence inconsistent with Mulligan’s first version of what occurred.

[¶ 17.]Finally, a friend of Goldade’s testified that Mulligan’s alleged reason for wanting to keep the gun concealed as she approached Goldade was implausible because the three-year-old would have been accustomed to seeing the many guns that were kept in this home. And, with respect to Mulligan’s alleged surprise at finding the gun in the closet, there was contrary evidence that Goldade had kept the gun in the closet so that Mulligan would have access to it if she needed it for protection. The evidence also reflected that Goldade and Mulligan had previously discussed needing to move the gun for their son’s safety. Thus, the implausibility of Mulligan’s story, the physical evidence, and the circumstantial evidence of intent were inconsistent with Mulligan’s defense that the gun had accidentally discharged. Instead, that evidence allowed the jury to infer that Mulligan intentionally shot Goldade to avoid the impending disclosure of her thefts and her removal from the home.

[¶ 18.] Mulligan, however, also speculates that the jury incorrectly convicted her, believing that she was merely negligent, a level of mens rea insufficient to constitute intent to commit the act. Mulligan’s argument is based on a jury question asking whether “lawful action done without usual and ordinary caution and resulting in a death constituted criminal intent”? However, rather than suggesting that the conviction was erroneously based on a finding of negligence, this question and the trial court’s response merely demonstrated that the jury was properly performing its duty to consider whether Mulligan’s act was excusable homicide.

[¶ 19.] “Homicide is excusable if committed by accident and misfortune in doing any lawful act, with usual and ordinary caution.” SDCL 22-16-30. In this case, the trial court correctly instructed the jury on how to distinguish between negligent conduct in an accident under circumstances involving usual and ordinary caution and intentional conduct. In responding to the jury’s question, the court incorporated Mulligan’s request that the jury be directed to review Instructions 29 and 30 on excusable homicide and specific intent. Instruction 29 reiterated the statutory definition of excusable homicide (accident and misfortune in doing a lawful act, with usual and ordinary caution). Instruction 30 also instructed that Mulligan must have intentionally “[done] the act” of shooting Goldade:

In the crime of first degree manslaughter the defendant must have criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does an act which the law declares to be a crime, the person is acting with criminal intent, even though the person may not know that the conduct is unlawful.

[¶ 20.]Thus, although the jury obviously had questions concerning this factual dispute, the record reflects that it was performing its required duty to determine whether the shooting was intentional or accidental. Considering the jury’s questions and the trial court’s response, we do not believe that the jury mistakenly found guilt based upon negligence.

[¶ 21.]Mulligan finally argues that the jury was overcome by passion, prejudice, and mistake of law because after rejecting the first degree murder charge, there was no other evidence that would support the manslaughter charge. Although Powell, supra, forecloses that argument, Mulligan more specifically argues that the State’s evidence of “motive” moved the jury to have sympathy with the victim resulting in a compromise verdict that was unsupported by law or evidence. However, as previously discussed, the evidence of motive was also evidence of intent. Therefore, that circumstantial evidence of intent together with the physical evidence can be used to support a rational theory of guilt. Ultimately, this was a case of credibility and “ ‘the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.’ ” Pasek, 2004 SD 132 at ¶ 7, 691 N.W.2d at 305 (citation omitted). We therefore affirm this issue.

2. Restitution

[¶ 22.] “It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities.... ” SDCL 23A-28-1. “ ‘Criminal activities,’ includes any crime for which there is a plea of guilty or verdict of guilty ... and any other crime ... which is admitted by the defendant, whether or not prosecuted.” SDCL 23A-28-2.

[¶ 23.]In this case, Mulligan was ordered to make restitution for the money she stole from Goldade even though she was not convicted of theft and did not admit to the theft. We have found error in similar circumstances. See State v. Nelson, 2003 SD 140, 672 N.W.2d 684 (reversing a restitution order regarding forged checks because the defendant had not been convicted or admitted guilt as to those checks). However, we do not reach the issue in this case because it was waived by Mulligan’s failure to object to the State’s request for payment of restitution for the theft.

[¶ 24.] At the sentencing hearing, the State asked for the following restitution:

[T]hat Ms. Mulligan be required to pay restitution for all costs associated with [Goldade’s] medical care subsequent to the shooting, as well as funeral expenses, and any other expenses that were incurred as a result of the injury and/or his death. In addition, the state is asking the Court to impose restitution for the money that Ms. Mulligan stole from [Goldade], pursuant to the events that lead [sic] to his death....

Following this request, defense counsel responded that: “Certainly restitution of all the things mentioned by the state would probably be appropriate.” Because the State specifically asked for restitution for the theft, and because Mulligan had the opportunity but did not object to that request, her restitution issue is waived. State v. Henjum, 1996 SD 7, ¶¶ 12-14, 542 N.W.2d 760, 763-764 (holding that issue of restitution was waived when defendant had opportunity but failed to object).

[¶ 25.] The dissent argues that plain error review should be applied to this issue, but plain error is inapplicable. Initially, Mulligan has not requested that we apply plain error in this appeal. In exercising our appellate function, it is elemental that we should limit our review to the arguments that are raised and briefed. See United States v. Simmons, 964 F.2d 763, 777 (8thCir.1992) (stating: “As a general rule, an appellate court may review only the issues specifically raised and argued in an appellant’s brief’). By raising and deciding other arguments sua sponte, the dissent disregards our appellate function and becomes an advocate for a party. In fact, the dissent’s application of plain error analysis vividly demonstrates why appellate courts do not generally decide arguments not raised by the parties.

[¶ 26.] Because we have not had the benefit of briefing on plain error analysis, the dissent applies plain error without recognizing that both this Court and the United States Supreme Court have previously concluded that this type of sentencing error is not subject to plain error review. It is not applicable because this is not the type of alleged error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Under the United States and South Dakota rules:

Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’

State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718, 727 (1997)).

[¶ 27.] Under this fourth element, “[w]e invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’ ” Id. (quoting Henjum, 1996 SD 7 at ¶ 14, 542 N.W.2d at 763). “Such circumstances may include cases in which ‘a miscarriage of justice would otherwise result,’ i.e., a defendant is actually innocent.” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 12 (1985)). Or, “[t]he error must ... have ‘so infected the entire trial that the resulting conviction violates due process.’” United States v. Bamberg, 478 F.3d 934, 939 (8thCir.2007) (quoting United States v. Smith, 450 F.3d 856, 859 (8thCir.2006)). The instant case does not present the types of exceptional circumstances justifying unrequested plain error review. It is, instead, analogous to Henjum, where this Court refused to reverse an erroneous restitution order. 1996 SD 7 at ¶ 14, 542 N.W.2d at 763.

[¶ 28.] In Henjum, the defendant pleaded guilty pursuant to a plea agreement, but he had not been given any forewarning by the court or counsel of the possibility of the imposition of restitution. Id. at ¶ 12, 542 N.W.2d at 763. He did, however, have an opportunity to object, but like Mulligan failed to do so at the restitution hearing. See id. at ¶ 13, 542 N.W.2d at 763. Although Henjum did raise and argue plain error on appeal, this Court held that plain error analysis was not applicable to correct the sentencing error involving restitution. Id. at ¶ 14, 542 N.W.2d at 763-764. This Court did so even recognizing that improperly imposed restitution “violates a defendant’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, § 2 of the South Dakota Constitution.” Id. at ¶ 13, 542 N.W.2d at 763 (citations omitted). We concluded: “Even fundamental rights can be waived.” Id.

[¶ 29.] The United States Supreme Court, under the analogous federal rule of criminal procedure, also concluded that

plain error analysis may not be applied to correct erroneously enhanced sentences. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton, the defendants’ sentences were unconstitutionally enhanced because the facts allowing the enhancement were not included in the indictment as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 535 U.S. at 632, 122 S.Ct. at 1785, 152 L.Ed.2d at 868. The government conceded in Cotton that the enhanced sentence was error and “that such error was plain.” Id. Nevertheless, the Supreme Court concluded that the fourth element requiring that “the error ... seriously affect the fairness, integrity, or public reputation of judicial proceedings” was not satisfied. Id. at 632-633, 122 S.Ct. at 1786, 152 L.Ed.2d at 868. In this unanimous decision reversing a court of appeal’s application of plain error, the Supreme Court explained:

[T]he fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments. The real threat then to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if [defendants], despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.

Id. at 634, 122 S.Ct. at 1787, 152 L.Ed.2d at 869-870.

[¶ 30.] Like Cotton, Mulligan’s restitution sentence involved overwhelming and essentially uncontroverted evidence of additional criminal activity (theft). She never contested her thefts at trial. Instead, in voir dire and throughout the trial, Mulligan’s counsel admitted that Mulligan had used Goldade’s' credit cards and forged his name. And again at sentencing, her counsel admitted that all of the restitution the State requested “would probably be appropriate.” Therefore, as the Supreme Court concluded in Cotton, in light of the overwhelming and essentially uncontroverted evidence of theft, plain error analysis is inapplicable.

[¶ 31.] Nevertheless, the dissent believes that its contrary conclusion is also justified by the fact that Goldade’s estate could bring a civil action to recover for restitution. See infra ¶ 53. However, the availability of an alternative civil remedy is irrelevant. And, even if the existence of other civil remedies were relevant, we should first review this issue through a competency of counsel claim in habeas corpus. Certainly, Mulligan’s counsel had a reason for agreeing that the theft had occurred and that the restitution requested was “probably appropriate.” But, it is only through habeas corpus that reviewing courts may receive the necessary evidence from Mulligan’s attorney explaining if this trial and sentencing tactic was approved by Mulligan or if there were other reasons for that choice. By focusing on irrelevant civil remedies rather than reasons for agreeing to restitution, the dissent simply declines to even consider why the defense chose to admit the theft at trial and agree to the restitution at sentencing.

[¶ 32.] Finally, the State did not concede, as the dissent suggests, that remand was necessary in this case. See id. The State’s brief only indicates that: “If this issue is not waived, given this undeveloped record, the case should perhaps be remanded .... ” (emphasis added). The State’s main argument is that the restitution issue was waived. That argument is correct.

S. Batson Challenge

[¶ 33.]There are three steps in considering a juror challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Generally, “a defendant must first establish a prima fa-cie case of purposeful discrimination by showing he [or she] is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates.” State v. Owen, 2007 SD 21, ¶ 45, 729 N.W.2d 356, 369 (citing Batson, 476 U.S. at 94-95,106 S.Ct. at 1722). “[A] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D.1993) (citing Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). “The burden then shifts to the State to provide a race-neutral explanation for the use of its peremptory challenges.” Owen, 2007 SD 21 at ¶45, 729 N.W.2d at 369 (citation omitted). “The trial court will then have the duty to determine if the defendant has established purposeful discrimination.” State v. Farmer, 407 N.W.2d 821, 823 (S.D.1987) (citation omitted).

[¶ 34.]We review the trial court’s ruling under the clearly erroneous standard. Batson, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724, 90 L.Ed.2d at 89 (stating that “the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, [therefore] a reviewing court ordinarily should give those findings great deference”); State v. Martin, 2004 SD 82, ¶ 13, 683 N.W.2d 399, 403 (utilizing the clearly erroneous standard). See also United, States v. Crawford, 413 F.3d 873, 875 (8thCir.2005) (stating that a “district court’s determination that the peremptory challenges are race-neutral is reviewed for clear error”).

[¶ 35.]In this case, the defense established its prima facie case by pointing out that the prosecution struck all five Native American jurors, although the record reflects that the race of the jurors in question may not have been readily discernible. The State then presented its race-neutral reasons for the strikes. In her brief to this Court, Mulligan essentially concedes that there were race neutral reasons for striking two of the five jurors. Therefore, we only consider the State’s reasons for striking the three remaining jurors.

[¶ 36.]The three remaining jurors included one man and two women. The State indicated that it struck the male because it was “seriously worried about his intelligence.” The first female was struck because the State felt: 1) she was too young for a murder trial and might be sympathetic to the defendant; 2) during voir dire, she had not said anything and had not raised her hand; 3) she appeared to be pregnant, which may have made her sympathetic to the defendant who had a young child; and 4) the State was informed by Officer Jensen that he had recently “picked her up on an intoxicated related situation.” The other female juror was struck because she was a younger female who might have been sympathetic to the defendant. The State also indicated that it struck the juror because she “worked at a grocery store, had contact with the defendant, [was] from Timber Lake, [and] also [knew] the deceased.” The State finally indicated that she had a high school versus a college education, and that “she’s had contact with at least some of the local law enforcement.”

[¶ 37.]AIthough the stated reasons are race neutral on their face, Mulligan argues that the stated reasons for disqualifying the two females were pretextual in light of the fact that three Caucasian female jurors with young children were chosen to serve. But at the time the trial court ruled on this issue, the selection process was not complete. Therefore, the trial court ruled that at that time “[t]he court can’t speculate as to whether or not some of those other young mothers might be gone too.” This observation was correct. At the time the defense raised this issue, the State had only used thirteen of its peremptory challenges and the defense had only used twelve. Thereafter, when the jury was selected and a comparison could have been made, the court asked, “[ajnything further from counsel as far as the jury pool?” Defense counsel replied: “Not from the defense.” Therefore, either the comparison was no longer valid or the defense chose not to pursue the issue. In either event, if the defense thought that there was an unresolved issue of discrimination in jury selection based upon a comparison of the three female Caucasian jurors and the two female Native American jurors, the defense had the burden of raising the issue and establishing a prima facie case. See Batson, 476 U.S. at 93-97, 106 S.Ct. at 1721-1723, 90 L.Ed.2d at 85-88. Because Mulligan chose not to raise that issue at the appropriate time at trial, we do not decide it for the first time on appeal. Henjum, 1996 SD 7 at 13, 542 N.W.2d at 763.

[¶ 38.]The comparison argument also fails to acknowledge that the other reasons stated for striking both females and the male were sufficient to sustain the trial court’s finding that there was no pretext. In addition to the stated reasons involving young women with children, one of the female jurors was struck because she “didn’t say a word, didn’t raise her hand. Part of the concern [the State] had was that she didn’t raise her hand and [the State] didn’t get a feel for the questions that were being asked either by defense counsel or by the [S]tate.” This potential juror had also been “picked up” on an intoxication related offense by a State law enforcement officer who was a witness in this trial. The other female juror was struck because she had contact with Mulligan through work, she was from the victim’s hometown, she may have known the victim, she lacked a college education, and because she also had contact with law enforcement. The male was struck because the State was “seriously worried about his intelligence.”

[¶39.] Mulligan, however, argues that these facially valid reasons were only “hunches” that do not constitute race-neutral reasons. However, the Eighth Circuit Court of Appeals recently noted that “ ‘[i]f there is no inherently discriminatory intent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ ” United States v. Carter, 481 F.3d 601, 609 (8thCir.2007) (quoting United States v. Roebke, 333 F.3d 911, 913 (8thCir.2003)). Here there was no inherently discriminatory intent in any of the State’s stated reasons for striking the three jurors.

[¶ 40.] Although Mulligan finally argues that the trial court did not perform the third step involving an analysis of pretext, the trial court did so, specifically finding: “I think the [S]tate has good reasons for all the [peremptory] challenges that they exercised.” The court also found “there’s a legitimate reason offered for each one that is something other than just a pretext_ [A]nd ... there is no attempt here to purposely exclude Native Americans.” Based on all the reasons actually proffered at trial, we see no clear error in these ultimate findings.

4» Spoliation Instruction

[¶ 41.]Officer Jeff Jensen was one of the first responders on the scene. He testified that he picked up the gun while wearing gloves and emptied the remaining rounds. He put the ammunition in his pocket and then placed the gun on the couch and covered it with a pillow. Later, he had to take the gloves off to remove the ammunition because the latex gloves were sticking to the material in his pocket. Mulligan requested a spoliation instruction concerning possible fingerprint evidence that may have been destroyed when Officer Jensen emptied the gun, placed it under a pillow on the couch and later handled the ammunition without gloves.

[i42.]We first observe that the State conceded that Goldade loaded the gun, so any destroyed fingerprint evidence from the ammunition may have only incriminated Mulligan. We also observe that the officer testified that although he was not wearing gloves, he removed the ammunition from his pocket carefully attempting to not destroy fingerprint evidence. Nevertheless, Mulligan claims that her fingerprints on the gun may have shown that she was holding the gun in her left hand, which would support her theory of an accidental discharge. Therefore, Mulligan contends that a spoliation instruction should have been given.

[¶ 43.]Generally “[a] trial court is not required to instruct on matters that find no support in the evidence[.]” State v. Kafka, 264 N.W.2d 702, 703 (S.D.1978) (citations omitted). The test for giving a spoliation instruction requires substantial evidence of four specific considerations.

An instruction on the inference that may be drawn from the spoliation of evidence is proper only when substantial evidence exists to support a conclusion that the evidence was in existence, that it was in the possession or under the control of the party against whom the inference may be drawn, that the evidence would have been admissible at trial, and that the party responsible for destroying the evidence did so intentionally and in bad faith.

State v. Engesser, 2003 SD 47, ¶ 46, 661 N.W.2d 739, 755.

[¶ 44.]Before ruling on Mulligan’s proposed spoliation instruction, the trial court considered the requirements of Engesser. The only consideration in dispute on appeal is the fourth requirement that there must have been substantial evidence that Officer Jensen destroyed fingerprints intentionally and in bad faith. However, because there was no evidence that the police acted intentionally in bad faith, Mulligan argued that Jensen exhibited a reckless disregard of police procedures for the preservation of evidence, which was manifested through incompetence. Mulligan argued that such reckless and incompetent conduct was equivalent to intentional, bad faith conduct.

[¶ 45.]Assuming without deciding the validity of Mulligan’s “reckless” argument, the trial court found that there was no evidence indicating that Jensen’s handling of the gun constituted a reckless disregard of the need to preserve evidence. The trial court’s finding was well supported. The evidence reflected that law enforcement appropriately declined to view evidence preservation as the first priority in this case. Jensen testified that as a first responder, he acted to secure the scene out of concern for his own safety and the safety of others. There was also other testimony that this was the correct priority, and that preserving evidence was a third priority behind officer and victim safety. Additionally, although there was testimony that police officers should never assume an innocent shooting (and that Jensen’s suspicions were aroused while at the house responding to the 911 call), the 911 dispatcher initially reported that this was an accidental shooting. We have been directed to no other evidence, much less substantial evidence, justifying a spoliation instruction even if reckless conduct were the correct standard. We therefore conclude that the trial court’s determination that there was insufficient evidence to give a spoliation instruction was correct.

[¶ 46.] Affirmed.

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

[¶ 48.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 49.] I dissent on Issue 2. In my view, it was plain error for the trial court to “impose restitution for the money” defendant allegedly stole from the victim whether objected to or not by trial counsel. The basic requirement is that the defendant either admitted to or was convicted of theft. State v. Nelson, 2003 SD 140, ¶ 5, 672 N.W.2d 684, 685 (holding the trial court’s decision to order restitution above an amount for which the defendant was convicted or did not admit violated SDCL 23A-28-1); State v. Davis, 458 N.W.2d 812, 812 (S.D.1990) (reversing an order requiring restitution for crimes that the defendant was not convicted of and did not admit); State v. Wolff, 438 N.W.2d 199, 201-02 (S.D.1989) (reversing restitution order of $15,550.40).

[¶ 50.] SDCL 23A-28-2(4) defines restitution as “full or partial payment of pecuniary damages to a victim.... ” Pecuniary damages are “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.” SDCL 23A-28-2(3) (emphasis added). Here, the “facts or event” for which the judge was sentencing was manslaughter. However, the trial court’s restitution order required “that defendant reimburse Walworth County for court appointed attorney fees; pay restitution regarding monies stolen from the victim; and reimburse all funeral expenses, the cost of the headstone, medical expenses of the victim and other charges related to the death of the victim. ...” While the attorney fees and “other charges related to the death of the victim” may be recoverable against the defendant in a civil action arising out of the manslaughter, the restitution for monies stolen arises from separate facts, specifically the alleged thefts. In other words, we require a nexus between the defendant’s crime and the victim’s damages. See State v. Joyce, 2004 SD 73, ¶ 16, 681 N.W.2d 468, 471 (holding a defendant who pleaded guilty to failure to provide information due to leaving the scene of an accident could not be ordered to pay restitution for other driver’s medical expenses when the failure to provide information did not cause the medical and vehicle expenses). The only crime Mulligan has been convicted of is manslaughter and the manslaughter did not cause the victim to lose the allegedly stolen money.

[¶ 51.] In paragraph 27, the majority opinion claims that, “[t]he instant case does not present the types of exceptional circumstances justifying unrequested plain error review.” I submit that this is the type of exceptional circumstance that justifies unrequested plain error review. Mulligan has not been charged with, admitted to or convicted of the crime for which restitution was imposed. Therefore, Mulligan is presumed innocent until proven guilty. We should not approve a punishment for a person who has not been proven guilty. This error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)) (additional citations omitted). The perception of judicial proceedings would be seriously affected if the public knew that a person could be punished for a crime the person had not admitted to, been convicted of or even charged with that crime.

[¶ 52.] Furthermore, the majority opinion cites Henjum as support for its conclusion that we should not grant relief in this case. Supra ¶ 27 (citing 1996 SD 7 at ¶ 14, 542 N.W.2d at 763). However, Henjum is distinguishable because the defendant pleaded guilty to the crime but had not been warned of the possibility of restitution. See 1996 SD 7, ¶ 10, 542 N.W.2d at 763. Here, Mulligan did not plead guilty to the crime for which restitution was imposed and Henjum does not control.

[¶ 53.] In this case, Mulligan neither admitted to nor was she convicted of theft in an amount close to the restitution ordered. Even the State’s brief suggests “the case should perhaps be remanded for hearing....” The error in ordering restitution in this case is plain error that affects a substantial right. We should reverse on this issue because holding someone liable for a crime that she has not admitted to or been convicted of seriously affects the fairness and reputation of the judicial proceedings against her. See State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (noting the plain error rule requires “1) error, 2) that is plain, 3) affecting substantial rights” and 4) we may exercise our discretion if the error “seriously affects the fairness, integrity or public reputation of the judicial proceedings”). The proper remedy in this case is a suit by the estate for damages arising from theft.

[¶ 54.] Therefore, we should reverse Issue 2.

      . SDCL 22-16-1 defines homicide.
      Homicide is the killing of one human being, including an unborn child, by another. Homicide is either:
      (1)Murder;
      (2) Manslaughter;
      (3) Excusable homicide;
      (4) Justifiable homicide; or
      (5) Vehicular homicide.

        Id.

      . The jury actually asked a number of questions, all of which suggest the jury was considering whether the shooting was excusable homicide; i.e., committed by accident without usual and ordinary caution, or whether it was intentional conduct.

      . Timber Lake was apparently Goldade’s hometown.

      . The record reflects nothing more than an unsupported assumption that Jensen may have smudged fingerprints or wiped off anything that might have been on the gun before he touched it. The State noted during the settlement of instructions that there was no proof that there ever was fingerprint evidence that was destroyed. However, the trial court found that the first prong of Engesser was satisfied because someone had handled the gun and there was no evidence that this person had been wearing gloves.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. ZINTER, Justice

license: Public Domain

text:
    2007 SD 69
    Timothy VANDER HEIDE and Ruth McLaughlin, Plaintiffs and Appellants, v. BOKE RANCH, INC., a South Dakota Corporation, Defendant, Third Party Plaintiff and Appellee, v. Barry D. Bender and Marjorie J. Bender, Third Party Defendants.
    Nos. 24273, 24285.
    Supreme Court of South Dakota.
    Considered on Briefs on April 23, 2007.
    Decided July 11, 2007.

      Courtney R. Clayborne of Clayborne, Loos, Strommen & Gusinsky, Rapid City, South Dakota, Attorneys for appellants.

      Brad P. Gordon, Roger A. Tellinghuisen of Tellinghuisen & Gordon, Spearfish, South Dakota, Attorneys for appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] On July 13, 2005, Timothy Van-der Heide (Timothy) and his wife Ruth McLaughlin (Ruth) (collectively “Vander Heides”) filed a complaint in the South Dakota Fourth Judicial Circuit against James Boke (James) and Boke Ranch, Inc. (collectively “Boke”). Vander Heides’ complaint alleged an oral agreement modifying a written easement and sought a declaratory judgment as to same, as well as to a determination of the location of the easement and scope of access restrictions. On August 22, 2005, Boke filed his answer. Subsequently, Boke amended his answer and filed a third-party complaint against Barry D. and Marjorie Bender (collectively “Benders”) alleging that Benders had expanded the use of the easement beyond its express provisions. On June 12, 2006, a trial was held after which the circuit court entered its memorandum decision, findings of fact, and conclusions of law in favor of Boke as to the issues of oral modification and location of the easement, in part for Boke as to the issue of restriction on access, and in favor of Benders as to the use issue. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] In June 1982, Lawrence County vacated a road and right-of-way running east and west through the adjoining properties of Loren R. Dodds and Dwaine D. Dodds (collectively “Dodds”), on the west end and the estate of Elvin F. Mitchell (Mitchell), on the east end. The right-of-way reverted to the adjacent property owners, Dodds and Mitchell. The roadway had fallen into disrepair and had essentially become a grass-grown, two-wheel path after years of minimal maintenance. In July 1982, Dodds and Mitchell executed a written easement that provided for the mutual access and use of the roadway through their respective properties. Some time during the mid-1980s, Mitchell sold its property to Ruth. In 1999, Dodds sold their property to Boke.

[¶3.] Thereafter, Boke applied to the Lawrence County Board of Commissioners to rezone his property for development purposes from agricultural to rural residential. Some time during the Fall of 2000, in advance of the rezoning hearing, Boke and Timothy had a discussion about the rezoning application and Boke’s intentions. Boke located Timothy in his driveway on the Vander Heide property. The record evinces that the nature of that discussion is in dispute.

[¶ 4.] At the time Boke was applying to rezone his property, there were several groups opposing any rural development in the area. Timothy has stated that the conversation constituted a negotiation for his agreement not to oppose Boke’s rezoning application. At a preliminary hearing he testified, “we weren’t big fans of seeing this property developed,” but that “I would refrain from objecting to the rezoning of the property if [Boke] would agree to abandon his right to exit any traffic along the existing easement towards the east through our property.... [I]t was his property. That was the agreement.” Timothy also testified that he believed this to be a one-way restriction, while Boke testified at trial that he believed Timothy reciprocally intended to use that portion of the roadway on the Vander Heide property to provide ingress and egress for any future development established on their property.

[¶ 5.] In disputing the claim that an oral agreement was consummated during the conversation, Boke indicated that on the day he met with Timothy, their discussion was “casual” and that it actually had a twofold purpose. At trial he testified that first, he wanted to thank Timothy for helping his daughter with a weed sprayer. Second, Boke testified that since Ruth, as the deed holder to the Vander Heide property, had been given notice of his rezoning application, he wanted to make himself available prior to the rezoning hearing, as a courtesy, to answer any questions she or Timothy might have about the development plan. Moreover, in refuting the claim of an oral agreement, Boke, a real estate agent testified, “When I make agreements concerning real estate, I have an attorney draw up an agreement. We were discussing what the intent was for the easement and what the intent was for the rezoning.”

[¶ 6.] According to Boke, Timothy had two concerns about the project; the potential affect on the creek that traversed the Vander Heide property, and increased traffic on the portion of the roadway located on their land. Boke testified that he told Timothy “the plans for the rezoning were not to exit any primary traffic that way.” He also testified that due to the condition of that part of the roadway, to do otherwise would require making considerable improvements and “that that was not [his] intent.” He indicated that the county wanted to maintain the roadway through Vander Heides’ property as an emergency access that the two discussed that use and that Timothy did not object.

[¶ 7.] According to Boke, Timothy expressed no intent to appear at the rezoning hearing to object to the Boke application. He testified that to the contrary, Timothy “was not real pleased with the other parties in the area fighting all the development and he was rather pleased to see [Boke’s development] going forward as long as he did not get a lot of extra traffic his way.” Boke stated that despite Timothy’s interest in creek flow and traffic issues, at no point during the discussion did he offer a quid pro quo wherein he would refrain from objecting to the rezoning in exchange for Boke’s favorable consideration of his concerns. Neither did the two discuss the potential for future development of the Vander Heide property nor what, if any, access to such a project Boke would allow over its property.

[¶ 8.] The events giving way to the dispute between the parties began in 2005. Boke’s rezoning application was approved, although through 2005, no work had commenced on the development. In 2003, Ruth quit claimed Timothy an interest in the Vander Heide property. In 2005, Timothy contacted Boke to inform him about a potential sale of the west 200 acres of Vander Heide property adjoining Boke’s.

[¶ 9.] Afterward, the two buyers went to see Boke to discuss access to the property they were proposing to purchase. They had been told by Timothy that the roadway easement would provide them access over Boke’s property. Boke testified that during this meeting he told the buyers that there was an easement and since it ran with the land they had a right to whatever it provided. However, he also told them that what the easement provided was uncertain. Timothy testified at a preliminary hearing that when the buyers told Boke that they planned to build a road within that part of the easement on Boke’s property, Boke replied that if they did, he would exit his development to the east over the property they were proposing to purchase and the Vander Heide property it adjoined.

[¶ 10.] Boke then sent a letter to Van-der Heides attempting to clarify his understanding of what was provided for by the easement and his belief that if any agreement had been reached between him and Timothy during their conversation in 2000, it provided that neither party was entitled to exit its development traffic over the property of the other. Subsequently, the prospective buyers backed out of the purchase and Vander Heides filed a claim against Boke seeking a declaratory judgment as to the alleged oral modification agreement as well as a determination of the location of the easement and the scope of its access restrictions.

[¶ 11.] On September 30, 2005, during the pendency of this litigation, Vander Heides sold the 200 acres adjoining Boke’s property to Benders. In late October or early November 2005, Benders called Boke to inform him that on the following day they would begin graveling the roadway extending west over Boke’s property. Benders were about to start construction of a new home and needed to gravel the roadway to facilitate access for construction and utility workers and their equipment. Boke filed for injunctive relief to stop the graveling operation, but the application was not heard until after the graveling had been completed. Thereafter, Boke sent letters to the Benders and Vander Heides informing them that he would be installing locking gates across the roadway on his property. The letter included keys so that the Benders and Vander Heides could open the gates.

[¶ 12.] On February 13, 2006, the Van-der Heides and Benders filed a motion for a temporary order to restrain Boke from maintaining the locking gates. In his affidavit in support of the application for a temporary restraining order, Timothy again addressed the alleged oral agreement stating that he and Ruth had:

surrendered and forgave ... rights to contest and resist [Boke’s] petition for zoning change on the condition that and not by way of limitation: (1) [Boke’s] development not in any way compromise the direction, water quality, or flow of a certain creek which runs over and through [the Vander Heide] real property, and (2) that [Boke] would develop the property and mandate the flow of traffic in such a way that traffic from [Boke’s] purchasers not proceed east to west past [the Vander Heide] residence on the previously referenced roadway, and on other conditions not specifically set forth herein.

(Emphasis added). In addition, Timothy alleged in his affidavit that Boke had violated an oral agreement, stating:

In violation of both the easement ... and the oral agreement of the parties, [Boke] has erected fences and gates with a lock across the aforesaid roadway, thus prohibiting and restricting access by [the Vander Heides and Benders] ....

(Emphasis added). On April 10, 2006, the circuit court filed an interim order whereby the parties were directed to keep the gates closed but unlocked.

[¶ 13.] Following a June 12, 2006 trial, the circuit court entered its final judgment on August 30, 2006, finding that the Fall 2000 conversation between Boke and Timothy was not an enforceable oral modification of the written easement; the portion of the easement extending over Vander Heides’ property included a deviation, from the original county roadway, around a bridge washout; the easement entitled Boke to install the gates he had placed across that portion of the roadway that extended across his property, but that only the west gate, located between his property and the public right-of-way could be locked; and Benders’ graveling of the roadway, extending over Boke’s property was a permitted use of the easement.

[¶ 14.] On appeal, Vander Heides raises the following issues:

1.Whether the circuit court erred in concluding that the Fall 2000 conversation between Boke and Timothy did not constitute an enforceable contract modifying the terms of the July 1982 written easement.
2. Whether the circuit court erred when it determined that a portion of the easement was located on Vander Heides’ property beyond the confines of the original county roadway.

[¶ 15.] Boke raises the following issue on appeal by notice of review:

3. Whether the circuit court erred by concluding that Benders’ graveling of the roadway over Boke’s property did not constitute an improper expansion of the easement.

[¶ 16.] The following issue combines Vander Heides’ issue and Boke’s issue as to gating and or the locking thereof:

4. Whether the circuit court erred when it concluded that the terms of the easement permitted Boke to install gates across that portion of the roadway on his property, but that he was only entitled to lock the west gate, located between Boke’s property and the public right-of-way.

STANDARD OF REVIEW

[¶ 17.] “We review the circuit court’s findings of fact under the clearly erroneous standard.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations omitted). “Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law.” Id. (citations omitted).

Contract interpretation is a question of law reviewable de novo. Because we can review the contract as easily as the trial court, there is no presumption in favor of the trial court’s determination. When the meaning of contractual language is plain and unambiguous, construction is not necessary. If a contract is found to be ambiguous the rules of construction apply. Whether the language of a contract is ambiguous is ... a question of law. We review a circuit court’s decision regarding an equitable remedy under the abuse of discretion standard.

Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 14, 709 N.W.2d 350, 354 (internal citations omitted).

ANALYSIS AND DECISION

[¶ 18.] 1. Whether the circuit court erred in concluding that the Fall 2000 conversation between Boke and Timothy did not constitute an enforceable contract modifying the terms of the July 1982 written easement.

[¶ 19.] Vander Heides argue that there was a clear expression of Timothy’s agreement to forbear from objecting to Boke’s rezoning application in exchange for his agreement not to use that portion of the roadway on Vander Heides’ property for Boke development ingress and egress. However, the circuit court concluded in its memorandum decision, incorporated by reference in its findings of fact and conclusions of law, that the Fall 2000 discussion between Timothy and Boke did not contain a sufficient agreement and understanding between the parties to constitute a modification of the written agreement.

[¶ 20.] “An agreement is the result of a mutual assent of two parties to certain terms, and, if it be clear that there is no consensus, what may have been written or said becomes immaterial.” Geraets v. Halter, 1999 SD 11, ¶ 16, 588 N.W.2d 231, 234 (quoting Watters v. Lincoln, 29 S.D. 98, 100, 135 N.W. 712, 713 (1912) (citation omitted)). “There must be mutual assent or a meeting of the minds on all essential elements or terms in order to form a binding contract.” Read v. McKennan Hosp., 2000 SD 66, ¶23, 610 N.W.2d 782, 786 (citations omitted). Whether there is mutual assent is a fact question determined by the words and actions of the parties. Id. ¶ 25 (citation omitted).

[¶ 21.] Consent is an essential element of a contract. SDCL 53-1-2(2). “Consent must be free, mutual and communicated.” Richter v. Industrial Finance Co. Inc., 88 S.D. 466, 472, 221 N.W.2d 31, 35 (1974) (citing SDCL 53-3-1). “Consent is not mutual unless the parties all agree upon the same thing in the same sense.” SDCL 53-3-3. The existence of mutual consent is determined by considering the parties’ words and actions. In re Estate of Neiswender, 2003 SD 50, ¶ 20, 660 N.W.2d 249, 253 (citing Coffee Cup Fuel Stops v. Donnelly, 1999 SD 46, 592 N.W.2d 924).

[¶ 22.] In this case, the parties’ conflicting testimony, as to their respective understandings about the purpose and result of the Fall 2000 discussion between Boke and Timothy, is sufficient to support the circuit court’s determination that no oral agreement was reached. According to Timothy there was a quid pro quo in that he agreed to forbear from objecting to Boke’s rezoning application in exchange for an agreement to modify the easement such that traffic from Boke’s development would not utilize that portion of the roadway on Vander Heides’ property. However, Boke indicated that no such agreement was discussed and that Timothy expressed no intention to object to the rezoning application. According to Boke, the two merely met so that he could explain the development plan and his intent to exit traffic to the west as well as answer any questions that Timothy might have. Timothy also indicated his understanding that the intent to limit development traffic was a one-way restriction upon Boke, while Boke stated during his deposition testimony that he believed Vander Heides would reciprocate by routing any traffic originating from their property over their portion of the roadway. Boke, a real estate agent, further evinced his understanding that there was no agreement when he indicated that it was his practice to commit to writing any agreement involving real estate, which in this case was not done.

[¶ 23.] The parties’ actions also support the circuit court’s determination. The concerns about the development plan that Timothy expressed during his meeting with Boke were limited to traffic and creek-flow issues. Boke later installed locking gates across the roadway on Boke’s property. Subsequently, in his February 13, 2006 affidavit, Timothy asserted additional conditions to his alleged agreement to forbear objecting to Boke’s rezoning application. Timothy alleged in the affidavit that the traffic and creek-flow conditions were “not by way of limitation” on further conditions and that there were “other conditions not specifically set forth” therein. Still, Timothy goes on to allege in the affidavit that one of these conditions involved Boke’s agreement not to install locking gates across the roadway. No evidence was presented to the circuit court as to what the other conditions consisted of nor did Boke express any knowledge as to other concerns that Timothy may have had beyond traffic and the creek.

[¶ 24.] There was evidentiary support to find that no meeting of the minds or consensus as to the alleged oral agreement was ever demonstrated in the words and actions of Boke and Timothy. In this regard, the essential contract element of consent was missing. Consequently, there was a sufficient basis for the circuit court to determine that there was no oral agreement to modify the written easement.

[¶ 25.] Moreover, had Boke and Timothy consummated an oral agreement, it would have been subject to the statute of frauds. Under the statute of frauds, “[a]n agreement for the sale of real estate or an interest therein” is not enforceable unless the contract is in writing and signed by the party to be charged or his duly authorized agent. SDCL 53-8-2(3). An easement is an interest in land subject to the statute of frauds. Spawn v. South Dakota Cent. Ry. Co., 26 S.D. 1, 127 N.W. 648, 649 (1910); see also Picardi v. Zimmiond, 2004 SD 125, ¶ 16, 689 N.W.2d 886, 890 (citing Knight v. Madison, 2001 SD 120, ¶ 4, 634 N.W.2d 540, 542 (quoting Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.App.1988))). A contract subject to the statute of frauds cannot be modified by oral agreement. Rooney v. Dayton-Hudson Corp., 310 Minn. 256, 246 N.W.2d 170, 175 (Minn 1976) (citing Scheerschmidt v. Smith, 74 Minn. 224, 77 N.W. 34 (Minn1898)).

[¶ 26.] Vander Heides read SDCL 53-8-2(3) to mean that the 1982 written easement agreement is not subject to the statute of frauds because the original parties to the easement acquired their respective dominant tenements through mutual grant rather than purchase by “sale” in exchange for money, as that term in the statute is frequently used. However, we are unconvinced by this rationale. We see no reason to distinguish an easement granted in exchange for money from one granted in exchange for any other kind of lawful consideration.

[¶ 27.] Alternatively, Vander Heides argue that the 1982 easement is removed from the purview of the statute of frauds by the equitable doctrine of promissory estoppel because they forbore from objecting to Boke’s rezoning application in reliance on his promise not to use the roadway on the Vander Heide property for development ingress and egress. See Jacobson v. Gulbransen, 2001 SD 33, ¶ 26, 623 N.W.2d 84, 91 (citations omitted) (recognizing that an agreement otherwise subject to the statute of frauds is removed therefrom by promissory estoppel when one relies to his detriment on an unfulfilled oral promise).

[¶ 28.] “To apply the doctrine of promissory estoppel, the [circuit] court must find: 1) the detriment suffered in reliance must be substantial in an economic sense; 2) the loss to the promisee must have been foreseeable by the promisor; and 3) the promisee must have acted reasonably in justifiable reliance on the promise made.” Garrett v. BankWest, Inc., 459 N.W.2d 833, 848 (S.D.1990) (citing Minor v. Sully Buttes School Dist. No. 58-2, 345 N.W.2d 48, 51 (S.D.1984)). Promissory es-toppel is not applicable if any of these elements are lacking or have not been proven by clear and convincing evidence. Hahne v. Burr, 2005 SD 108, ¶18, 705 N.W.2d 867, 873 (citing Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 866 (S.D.1993) (citations omitted)).

[¶ 29.] The record does not reveal that Vander Heides ever submitted evidence of a substantial economic detriment to the circuit court. The foregoing analysis reveals that, short of a promise, Boke merely expressed intent not to use the roadway on Vander Heides’ property for development ingress and egress. Further, Timothy’s February 13, 2006 affidavit belies the existence of a promise because there was no meeting of the minds. In the affidavit, Timothy alleges conditions beyond those involving traffic and the creek, from which he originally claimed the basis of an oral agreement with Boke was formed.

[¶ 30.] Vander Heides’ alleged reliance was not in anyway justified given the absence of a promise or at best, one that was vague and uncertain. See Werner v. Norwest Bank South Dakota N.A., 499 N.W.2d 138, 141-42 (S.D.1993) (holding that the agreement, to receive a loan in excess of $60,000 upon which the bank’s customer relied was too vague and uncertain to support an estoppel claim where the bank’s loan officer responded by saying “no problem” to the customer’s oral statement estimating a need of $60,000-$80,000). Since Vander Heides’ promissory-estoppel argument fails, the 1982 written easement is not removed from the statute of frauds. Therefore, it could not have been modified by oral agreement even if one had been accomplished.

[¶ 31.] The circuit court also found that Timothy did not acquire an ownership interest in the Vander Heide property until three years after his Fall 2000 discussion with Boke. Therein, the court concluded that, in any case, Timothy had no power to enter into an agreement modifying the easement without some showing of proper authority, of which no evidence was presented. See Axtell v. Mueller, 44 S.D. 220, 183 N.W. 133, 133 (1921) (holding that a real estate transaction subject to the statute of frauds was invalid when executed by seller’s agent without proper authority). See also SDCL 43-13-4 (a servitude can be created only by one who has a vested estate in the servient tenement).

[¶ 32.] As yet another alternative, Van-der Heides argue that promissory estoppel can also be invoked to salvage its claim in spite of Timothy’s lack of authority in 2000 to enter into an agreement to modify the easement. They aver that application of the equitable remedy is justified in this regard, not to compel enforcement of the alleged oral agreement on the basis that Vander Heides forbore objecting to the rezoning application in reliance on Boke’s alleged promise, but rather on the basis that Timothy forbore a personal right to attend the rezoning hearing in reliance on the same promise. Based on our foregoing analysis as to the efficacy of promissory estoppel, we conclude there is no justification in its application to this set of facts.

[¶ 33.] 2. Whether the circuit court erred when it determined that a portion of the easement was located on Vander Heides’ property beyond the confines of the original county roadway.

[¶ 34.] A question as to the location of the easement over a portion of Vander Heides’ property arose out of the dispute over the alleged oral modification. A creek intersected the roadway near Van-der Heides’ residence. There had originally been a bridge over the creek, but it had been washed out. Consequently, the route over the creek is by way of a deviation from the roadway around the washout. The deviation passes over Vander Heides’ property near the front yard of their residence. According to Dwaine Dodds (Dwaine), Boke’s predecessor in interest who had acquired that property in or around 1957, the bridge had washed out some time during the late 1940s or early 1950s. Dwaine testified at trial that since then the route over the creek has always been by way of the deviation.

[¶ 35.] While the 1982 easement provides that Dodds and Vander Heides’ predecessor in interest, Mitchell, intended to retain a mutual easement following the “established right-of-way and road,” section (1) of the agreement also provides that Mitchell grants a perpetual easement running with the land for use of the “present roadway” across the Mitchell property. See supra note 1. Dwaine testified that prior to 1982, Mitchells had “supplied a gate and allowed us to go down through their property to get on the road on the other side of the wash.” Dwaine also indicated that at the time he and Mitchell signed the easement it was their intent that the deviation be included in the easement.

[¶ 36.] The circuit court found that the route over the creek was by way of the deviation and in applying rules of contract construction concluded that the deviation was included as part of the “present roadway” as provided in the 1982 easement. Vander Heides argue that the 1982 easement is unambiguous and clear on its face and that the easement extends over the roadway within the original county right-of-way with no deviation. Vander Heides thus aver it was error for the circuit court to consider parole evidence in determining the intent of the parties as to the location of the easement at the time it was executed. We disagree.

[¶ 37.] In reviewing provisions of the easement, we must first determine whether it is ambiguous as to location. When contract language is unambiguous, extrinsic evidence is not considered because the intent of the parties can be derived from within the four corners of the contract. Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 n. 2 (SD 1993) (citation omitted). However, when the language is ambiguous, we may go beyond the four corners to ascertain the intent of the parties. AFSCME Local 1922 v. State, 444 N.W.2d 10, 12 (S.D.1989).

A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Pesicka v. Pesicka, 2000 SD 137, ¶ 10, 618 N.W.2d 725, 727 (quoting Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719 (citations omitted)).

[¶ 38.] In this case, the language of the easement is ambiguous as to location because viewed within its four corners the agreement is subject to more than one interpretation. Since the terminology that reserves an easement following the established right-of-way and road is ambiguous when juxtaposed with that which provides for the perpetual use of the present roadway, we must go beyond the agreement to determine the intent of the parties at the time the easement was executed. Therefore, in light of the testimony of Dwaine, an original party to the easement, we find no error in the circuit court’s finding that the easement includes the deviation.

[¶ 39.] 3. Whether the circuit court erred by concluding that Benders’ graveling of the roadway over Boke’s property did not constitute an improper expansion of the easement.

[¶ 40.] Boke argues that Benders’ graveling of the roadway constituted an improper expansion of the easement in that the gravel surface, when finished, extended beyond the allowed width and that the graveling operation in general was not permissible maintenance, but rather impermissible as an improvement. The circuit court concluded that Benders’ graveling of the roadway did not constitute an improper expansion on either the question of width or improvement. Since the easement is silent as to both questions we may go beyond the four corners of the agreement to determine what it allows. AFSCME LOCAL 1922, 444 N.W.2d at 12 (recognizing that when contract language is ambiguous, and does not speak to a subject it would normally be expected to, the court may go beyond the four corners of the contract).

Width of the Easement

[¶ 41.] “An easement by grant does not require a definite statement as to width, dimensions, or exact location. The extent of an easement by grant can be ascertained either by the words clearly expressed, or by just and sound construction of the easement document.” Picardy 2004 SD 125, ¶ 16, 689 N.W.2d at 890 (citations omitted).

[¶ 42.] Dwaine testified that while the easement provides that it follows the roadway located within the right-of-way vacated by the county, the intent of the parties was that its width would be confined to the roadway itself. According to Dwaine, the roadway was 12-14 feet wide. He established this width by explaining that it was the same as the width of the gates that he and Mitchell had placed across the roadway. Dwaine stated that the roadway was not wide enough for two vehicles to pass. He went on further to state that it was just wide enough for the Mitchell’s “old Army 6x6” that could just pass through the gates.

[¶ 48.] Marjorie Bender testified at the trial that a contractor was hired to lay the gravel. She stated that she and her husband wanted to keep the gravel “within the existing area.” With that in mind, they asked the contractor to put down two inches of gravel, 10-12 feet wide. Marjorie stated that the charge for the gravel was accordingly based on those dimensions.

[¶ 44.] The circuit court concluded that the easement was 12-14 feet wide. Its conclusion is supported by its determination, based on the testimony at trial, that the roadway is also 12-14 feet wide. The circuit court then further determined that Benders did not widen the roadway. This determination is not clearly erroneous given Marjorie’s testimony that they paid for a 10-12 foot wide swath of gravel. Accordingly, we find no error with the circuit court’s determination that Benders did not expand the easement as to width.

Maintenance of the Easement

[¶ 45.] Our Legislature has set out that “[t]he extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” SDCL 43-13-5. This Court has held that the following principle is implicit in this statute:

the holder of a private easement has the right to limited use or enjoyment of the property only if it is consistent with the general use of the property by the owner, and “neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement.”

Canyon Lake Park, L.L.C. v. Lofbus Dental, P.C., 2005 SD 82, ¶27, 700 N.W.2d 729, 736 (quoting Selway Homeowners Ass’n v. Cummings, 2003 SD 11, ¶ 28, 657 N.W.2d 307, 315); see also Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542. In that regard, this Court has concluded that the expansion of an easement beyond the terms of the grant is an undue interference with the reserved rights of the grantor. Picardi, 2004 SD 125, ¶21, 689 N.W.2d at 892 (citation omitted).

[¶ 46.] Roads deteriorate over time due to the elements and stress of use. When maintenance or repair are necessary in order for the dominant tenement owner to retain the enjoyment of his estate, he may enter upon the servient tenement to perform such maintenance and repair, while in the process doing no unnecessary injury to the servient estate. Nixon v. Welch, 238 Iowa 34, 24 N.W.2d 476, 481 (1947) (holding that the dominant tenement owner had a right to enter onto the servient tenement to clear a drainage ditch where it had an easement that permitted it to drain surface water onto the servient tenement); Laden v. Atkeson, 112 Mont. 302, 116 P.2d 881, 885-86 (1941) (affirming an award to the dominant tenement owner of a ditch right of a designated route across the servient tenement and sufficient amount of land near the head of the ditch so as to accommodate necessary maintenance and that said route and land constituted a “secondary easement” implicit in the primary easement that established the ditch right); Sullivan v. Donohoe, 287 Mass. 265, 191 N.E. 364, 365 (1934) (holding that the defendant was entitled to take a sufficient amount of the plaintiffs property to conduct repairs and preserve an easement); compare Guthrie v. Hardy, 305 Mont. 367, 28 P.3d 467, 477 (2001) (affirming the order below enjoining the dominant tenement owner from using its easement for all but ingress and egress since maintenance was performed in a manner that imposed an undue burden upon servient estate).

[¶ 47.] Benders purchased the west 200 acres of Vander Heides’ property with the intention of building a home. The roadway on Boke’s property, which by easement afforded them ingress and egress had, according to Dwaine, been graveled by the county prior to 1982 when it was vacated. However, as Boke, Timothy and Dwaine testified, over the years the roadway had fallen into a state of disrepair becoming little more than a grass-grown, two-wheel path.

[¶ 48.] Benders knew that they would be traveling the roadway on a regular basis. Moreover, construction and utility workers, as Benders’ invitees, would be traveling back and forth with their equipment between the construction site and the public right-of-way. In order to make the easement safe and usable for the purpose that it was intended, Benders reapplied gravel to the roadway. Boke, now claims that applying gravel to the road constituted an impermissible improvement and expansion of the easement.

[¶ 49.] This claim is without merit. Benders had a right to put the easement into a condition that would enable them to retain the enjoyment for which it was intended and provide safe passage to those invitees to whom they authorized access. However, that does not extend to further improvements or to allow public access which were never contemplated by the terms of the easement nor agreed to by the grantor. Boke offers no evidence to show how its reservation was burdened or injured by the graveling. Since Boke’s reservation in the servient estate was not infringed upon in any way, we conclude that the graveling of the roadway by Benders was a reasonable and permissible maintenance of the easement and that the circuit court did not err in concluding as much.

[¶ 50.] 4. Whether the circuit court erred when it concluded that the terms of the easement permitted Boke to install gates across that portion of the roadway on his property, but that he was only entitled to lock the west gate, located between Boke’s property and the public right-of-way.

[¶ 51.] Since the 1982 easement is unambiguous as to this issue and clear on its face, our review of same is limited to the plain meaning of the pertinent language within its four corners. See Spring Brook Acres Water Users Ass’n, Inc., 505 N.W.2d at 780 n2.

[¶ 52.] The pertinent section of the easement provides:

That the parties, by the execution of this mutual easement, intend to restrict future travel along said roadway and to that extent gates may be placed on the respective properties, provided however, that if such gates are locked by any grantor, such grantor shall be obligated to provide the grantee with the means of opening such gates for their private use in traveling along said roadway covered by these mutual easements.

(Emphasis added.)

[¶ 53.] The provision places no restriction on the number or location of gates that either party may install on their respective properties. A landowner retains the right to construct a gate unless he or she “explicitly give[s] this right away.” Block v. Drake, 2004 SD 72, ¶ 25, 681 N.W.2d 460, 467. However, the landowner must not unreasonably “interfere with the use or enjoyment of the easement.” Id. ¶ 22 (citing Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 543). Here, as a matter of law, the only limitation on Boke’s right, as the servient tenement owner, to place locking gates on his property is the extent to which the language of the easement granted that right away to the dominant tenement owners, or any subsequent action by Boke that unreasonably infringed on the ability of the Benders and Van-der Heides, as dominant tenement owners, to use and enjoy the easement in conformity therewith. See Stanga v. Husman, 2005 SD 36, ¶ 9, 694 N.W.2d 716, 718 (citations omitted). The language in the easement evinces the parties’ contemplation as to whether “such gates are locked by any grantor” without limitation. (Emphasis added). In addition, the easement provides that a means of access be made available to the other party as dominant tenement owner in the event locking gates are installed. Therefore, it is clear that the parties to the easement intended that all gates could be locked as this right was retained by the landowner and not conveyed away in the easement.

[¶ 54.] We agree with the circuit court’s finding that one of the justifications for Boke’s placement of gates is that livestock can be pastured on its property. See Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 543 (holding that unless the servient tenement owner expressly agrees otherwise, he reserves the right to use his property for any purpose that does not unreasonably infringe upon the dominant tenement owner’s use and enjoyment of the easement). However, we find no support for its conclusion that some gates can be locked while others cannot. “[G]ates may serve a multitude of valuable purposes.” Block, 2004 SD 72, ¶ 25, 681 N.W.2d at 467. In this instance, gates keep cattle in and the public out. We conclude that the easement unambiguously provides that all gates that Boke places on his property can be locked and that the only limitation on the number and placement is, as a matter of law, the right of the Benders and Vander Heides to use and enjoy the easement. Since Boke provided the Benders and Vander Heides a means of accessing the gates in question, we find no infringement upon that right under the circumstances. For the foregoing reasons we reverse this issue.

[¶ 55.] Affirmed in part and reversed in part.

[¶ 56.] KONENKAMPand MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 57.] ZINTER, Justice, concurs with a writing.

[¶ 58.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

ZINTER, Justice

(concurring).

[¶ 59.] I concur, except that on Issue 1, I would go no further than to hold that the evidence overwhelmingly established that no oral agreement had been reached modifying the terms of the easement.

      . The July 1982 easement provides in pertinent part:
      WHEREAS, Lawrence County, acting through its Board of County Commissioners, has indicated a willingness to vacate that certain right-of-way running from East to West across portions of the above described property as owned by the above respective individual owners, and WHEREAS, it is the mutual intention of the parties hereto that there be retained an easement across their respective properties and following the current established right-of-way and road for the private use of the parties hereto, their successors and assigns, now therefore, in consideration of the mutual easements hereby granted, the parties do hereby agree as follows:
      (1)That Mitchell does hereby give and grant to Dodds, their successors and assigns, a perpetual easement and covenant running with the land for a continued use of the present roadway across the real property described hereinabove being owned by Mitchell;
      (2) That Dodds does hereby give and grant to Mitchell a perpetual easement and covenant running with the land for the continued use by Mitchell of the present roadway across the real property described herein-above being owned by Dodds;
      (3) That the granting of the mutual easements hereunder, in no way obligates the grantor to maintain any part of said roadway;
      (4) That the parties, by the execution of this mutual easement, intend to restrict future travel along said roadway and to that extent gates may be placed on the respective properties, provided however, that if such gates are locked by any grantor, such grantor shall be obligated to provide the grantee with the means of opening such gates for their private use in traveling along said roadway covered by these mutual easements.

      . Boke’s parcel consists of 160 acres. His redevelopment plan establishes a subdivision on the property consisting of 32 five-acre parcels.

      . The circuit court found that Timothy is an attorney “experienced in handling real estate transactions.” Boke contends that as such, he should be held to a higher standard of care in the conduct of his personal business activities. See Columbus Trade Exchange, Inc. v. AMCA Intern. Corp., 763 F.Supp. 946, 956 (S.D.Ohio 1991) (opining that businesses represented by experienced businessmen should be held to a higher standard in requiring compliance with the statute of frauds and that when parties have extensive business experience they should be required to exercise a greater degree of care in their business practices than to merely seal an alleged deal with a handshake). Since Vander Heides failed to satisfy the basic requirements of establishing promissory estoppel, we find it unnecessary to address this additional issue concerning attorneys and leave it for another day.

      . Moreover, we have long held that a party is charged with inquiry notice of an easement when ordinary diligence would have revealed its existence.

        See Picardi, 2004 SD 125, 689 N.W.2d 886; Tan Corp. v. Johnson, 555 N.W.2d 613 (S.D.1996); Peterson v. Beck, 537 N.W.2d 375 (S.D.1995); Townsend v. Yankton Super 8 Motel, Inc., 371 N.W.2d 162 (S.D.1985); Steele v. Pfeifer, 310 N.W.2d 782 (S.D.1981); Wiege v. Knock, 293 N.W.2d 146 (S.D.1980). Here, there can be no question that when Ruth acquired the Mitchell property, she had knowledge that it was the deviation that afforded users of the roadway a route across the creek, and not a daredevil jump from one bridge abutment to the other. The roadway was used to access the property owned by the Mitchells. The bridge washed out at least 35 years prior to Ruth's acquisition of the property. As Dwaine testified, the deviation had been the only way to ford the creek since that time.

      . Contrary to a burden, it seems as though it would be a benefit considering that Boke himself was planning on using the same stretch of roadway to provide ingress and egress for his own 32 parcel development.