author: KONENKAMP, Justice. SABERS, Justice

text:
    2004 SD 60
    STATE of South Dakota, Plaintiff and Appellee, v. Jacob L. HESS, Defendant and Appellant.
    No. 22619.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided May 5, 2004.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Office of the Public Defender, Rapid City, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this case, we must decide whether a warrantless police entry and search of a home, mistakenly thought to be the home of an arrestee for whom the officers had a warrant, constituted a Fourth Amendment violation. After looking in the window of a home where the police were to arrest a person on a felony warrant, which was actually the home next door, the officers observed the defendant and another man using a controlled substance. Believing that exigent circumstances existed and that this was the home of the person they were to arrest, the officers enteréd, arrested the men, and searched the premises. The defendant was the boyfriend of one of - the women living at this residence. He was not- planning on staying overnight on that evening, but he had been an overnight guest on previous occasions. In denying his motion to suppress, the circuit court ruled that the defendant had no standing to contest the search and seizure. The defendant was convicted of possession of a controlled substance. On appeal, we conclude that the defendant had standing to raise a constitutional challenge to the search. However, because the officers acted under the good faith but mistaken belief that they were executing an arrest warrant at the right premises, and because their observations through the window disclosed exigent circumstances allowing an immediate war-rantless entry into the home, the Fourth Amendment was not violated by the search and arrest.

Background

[¶ 2.] On March 6, 2002, at 10:50 p.m., deputies from the Pennington County Sheriffs Office sought to serve an arrest warrant for Thomas Corey. The warrant was for the crime of second degree manslaughter, in that Thomas Corey was charged with recklessly causing the death of a person in a motor vehicle crash on February 10, 2002. The warrant specifically listed Corey’s address as “3936 Canyon Lake Dr.” Deputy Moore testified that they located Corey’s residence by driving along Canyon Lake Drive until they found a-mailbox by the road indicating the address of 3936 Canyon Lake Drive. The deputies parked their car on the opposite side of the street behind a wall and proceeded across the four lanes of Canyon Lake Drive. After they passed the mailbox and crossed the lawn, they saw a two-stall carport that adjoined two homes. There were no lights on in the first residence. In the front of the second residence, the officers noticed a vehicle running with its lights on. Deputy Moore shined -his flashlight on 3936½, but only saw the number 3936. He testified that later examination revealed that the numbers 3, 9, 3, and 6 were approximately two inches by one inch and the ¼ was about a quarter of the size of the other numbers.

[¶ 3.] The deputies also noticed that there were lights on in the second residence. They went to the south side of 3936½ and looked through the window. Deputy Moore knew he was on private property at this point. Although the blinds were pulled, Deputy Moore, by putting his face close to the window, was able to see two males sitting on a bed. To get a better view, he went to a window on the west side of the house located in the carport. Again the blinds were pulled on this window; however, Deputy Moore was able to see that the two males sitting on the bed were loading and smoking a pipe with a white substance taken from a metal container. Believing that he was witnessing the illegal use of a controlled substance, specifically methamphetamine, Deputy Moore conferred with Deputy Osborne and they decided that there were exigent circumstances because they did not know how much evidence was there. While Deputy Osborne remained at the window to watch the two men, Deputy Moore went to the front door and knocked.

[¶ 4.] Jennifer Mink opened the front door to Deputy Moore. He pushed his way into the house, proceeding to the back bedroom. Deputy Smith followed. Once in the bedroom, the deputies apprehended and restrained the two men, later identified as the defendant Jacob Hess and Tuan Nguyen. Having observed the men from the window, Deputy Osborne indicated that one of them had shoved the metal container underneath the bed. Deputy Moore reached under the bed and pulled out the open metal container. It contained three snort tubes, plastic baggies with a white substance, a couple of vials containing a white substance, razor blades, and a green bag containing a pill. An initial field test showed that the white substance was methamphetamine. Later laboratory tests confirmed the analysis.

[¶ 5.] Upon further investigation, the deputies learned that Jennifer Mink and Jennifer Wright were the persons who lived at the residence. They also discovered that they were not at 3936 Canyon Lake Drive, but at 3936½ Monte Vista. Deputy Sergeant Verchio arrived on the scene after Jennifer Mink requested to speak with a supervisor. He obtained Jennifer Wright’s permission to continue to search her bedroom, the room where the defendant had been seen using the methamphetamine. Shortly thereafter, the deputies found a scale and a large white rock substance under the bed.

[¶ 6.] Jennifer Wright later testified that Hess had been at the residence all afternoon, that they had left only to go to dinner, and that they had returned to the residence after dinner. At approximately 10:50 p.m., when the deputies arrived, no definite plans had been made on whether Hess was to spend the night. The group had planned to go out to the bars and it was a possibility that Hess would spend the night in the apartment. Jennifer Wright disclosed that she and Hess had an intimate relationship, that he had been at the residence numerous times before March 6, 2002, and that they had previously spent the night there together.

[¶ 7.] Hess was charged with possession of a controlled substance in violation of SDCL 22-42-5, a class four felony, and inhalation of a substance as defined in SDCL 35-1-1 for the purpose of becoming intoxicated in violation of SDCL 22-42-15, a class one misdemeanor. In circuit court, he moved to suppress the evidence seized, asserting violations of his state and federal constitutional rights. The trial court denied the motion. The court concluded that Hess had no standing to challenge the search because he lacked any reasonable expectation of privacy, since he was not an overnight guest on that occasion. Alternatively, the court found that, even if Hess had a reasonable expectation of privacy, the officers’ actions “in approaching the poorly marked residence and peering inside to determine whether Corey Thomas [the arrestee] was present was done in good faith and was objectively reasonable.” The court then concluded, “once the officers saw the use of controlled substances, they had exigent circumstances sufficient to enter the residence and secure the situation.” Lastly, the court ruled that Wright’s consent was sufficient to allow a continued search of her bedroom. After a stipulated court trial, Hess was found guilty of possession of a controlled substance. He was sentenced to a suspended four-year term in the penitentiary and placed on intensive probation. In addition, he was ordered to serve 180 days in the county jail with work release. The State dismissed the charge of inhaling a substance.

[¶ 8.] On appeal, Hess asserts the following: (1) “The trial court erred in finding that Hess did not have a legitimate expectation of privacy in the home of Wright and Mink to challenge the legality of the deputies’ warrantless search and subsequent warrantless entry and search of that home.” (2) “The trial court erred in not finding that the deputies’ observations through the window of the home of Wright and Mink constituted a search that was in violation of Hess’s Fourth Amendment right against unreasonable searches and seizures.” (3) “The trial court erred in finding that exigent circumstances did exist justifying the deputies’ failure to obtain a warrant before entering and searching the Wright and Mink home.” (4) “The trial court erred in finding that the ‘good faith’ exception to the exclusionary rule applied in the present case.” (5) “The trial court erred in finding that the consent given by Wright to search her bedroom was valid.”

Standard of Review

[¶ 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. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728 (citations omitted). We review findings of fact under the clearly erroneous standard. State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed' de novo. State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607 (citation omitted). Whether police had a “lawful basis to conduct a war-rantless search is reviewed as a question of law.” Id. ¶ 12 (quoting State v. Sleep, 1999 SD 19, ¶ 6, 590 N.W.2d 235, 237 (citing State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted))). Thus, the issue whether an exception to the warrant requirement applies is reviewed de novo.

Analysis and Decision

Expectation of Privacy

[¶ 10.] Hess asserts that the deputies violated his constitutional protections against unreasonable searches and seizures when they conducted a warrantless search of his girlfriend’s apartment and therefore all evidence obtained as a result of the search must be suppressed. Before we consider the validity of the search, we must first determine whether Hess had a right under the Fourth Amendment and similar state constitutional guarantees to challenge the deputies’ conduct. The trial court denied the motion to suppress because it found that Hess did not have standing under the Fourth Amendment to challenge the search and because consent to search was later given by one of the persons in lawful possession of the apartment.

[¶ 11.] The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause[.]” US Const amend IV. Similarly, the South Dakota Constitution, Art. VI, § 11, provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.” The Fourth Amendment is a personal right; thus an individual must invoke its protections. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472-73, 142 L.Ed.2d 373 (1998); State v. Westerfield, 1997 SD 100, ¶ 9, 567 N.W.2d 863, 866 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir.1995)). To claim protection under the Fourth Amendment, defendants must demonstrate a personal and reasonable expectation of privacy in the place searched. Carter, 525 U.S. at 88, 119 S.Ct. at 472, 142 L.Ed.2d at 387 (citing Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, and n. 12, 58 L.Ed.2d 387 (1978)); Westerfield, 1997 SD 100, ¶ 9, 567 N.W.2d at 866. The threshold question, therefore, is whether Hess had a reasonable expectation of privacy in his girlfriend’s apartment.

[¶ 12.] We begin our analysis by reviewing the evolution of United States Supreme Court cases regarding expectation of privacy. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the defendant was arrested in a friend’s apartment during the execution of a search warrant and sought to challenge the warrant on the ground that it was not supported by probable cause. Jones testified that:

the apartment belonged to a friend, Evans, who had given him the use of it, and a key, with which [Jones] had admitted himself on the day of the arrest. On cross-examination [Jones] testified that he had a suit and shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, that Evans had let him use it ‘as a friend,’ that he had slept there ‘maybe a night,’ and that at the time of the search Evans had been away in Philadelphia for about five days.

Jones, 362 U.S. at 259, 80 S.Ct. at 730. Ultimately, the Court ruled that Jones could challenge the search of his friend’s apartment because he was “legitimately on premises.” Id. at 267, 80 S.Ct. 725. “Under these circumstances, this Court stated that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them, ‘anyone legitimately on premises where a search occurs may challenge its legality.’ ” Rakas, 439 U.S. at 141, 99 S.Ct. at 429 (quoting Jones, 362 U.S. at 267, 80 S.Ct. at 734).

[¶ 13.] In Rakas, the defendants asserted that they had standing to challenge the search of an automobile in which they were passengers. 439 U.S. at 140, 99 S.Ct. at 429. They argued that “their occupancy of the automobile in question was comparable to that of Jones in the apartment and that they therefore have standing to contest the legality of the search.” Id. at 141, 99 S.Ct. 421. Finding that the passengers did not have the requisite expectation of privacy to raise a constitutional challenge to the search, the Rakas Court rejected the “legitimately on premises” standard set forth in Jones as too broad and did away with this rubric of “standing” analysis. However, the Court reaffirmed the factual holding in Jones, stating:

We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question was unlawful.
We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.

Id. at 141-42, 99 S.Ct. 421. Recognizing that Jones, as an overnight guest, was more than merely “legitimately on the premises,” the Court ruled that defendants must demonstrate that they personally have an expectation of privacy in the place searched, and that the expectation must be reasonable in order to claim Fourth Amendment protection. Id. at 143-44, 99 S.Ct. 421.

[¶ 14.] In Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Court held that the defendant, who was an overnight guest in a duplex, had a legitimate expectation of privacy in the premises protected by the Fourth Amendment and could challenge his warrantless arrest. Distinguishing the facts of Olson from Jones, where the overnight guest was left alone and had a key to the premises with which he could come and go and admit and exclude others, the Court recognized that all citizens share the expectation that hosts will more likely than not respect their guests’ privacy interests even if the guests have no legal authority to determine who may enter the household. According to Professor LaFave, Olson amounts to a per se rule that one’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.... Yet, it is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.” Wayne R. LaFave, 5 Search & Seizure § 11.3 (3d ed).

[¶ 15.] In Carter, two defendants were present in another person’s apartment for a short time for the sole purpose of packaging cocaine. 525 U.S. at 88, 119 S.Ct. 469. Reasoning that the facts of the case fell “somewhere in between” an overnight guest found to have an expectation of privacy protected by the Fourth Amendment in Olson, and a guest merely permitted on the premises who cannot claim the protection of the Fourth Amendment, the Court emphasized “the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder.” Id. at 91, 110 S.Ct. 1684. In doing so, the Carter Court concluded that the “situation is closer to that of one simply permitted on the premises,” and held that the defendants did not have an expectation of privacy in the premises sufficient to challenge the search. Id. Therefore, any search that may have occurred did not violate their Fourth Amendment rights. Id. It is important to note that Carter was a plurality opinion in which Justice Kennedy provided the fifth vote necessary for a majority, writing in a special concurrence that, “as a general rule, social guests will have an expectation of privacy in their host’s home.” Id. at 102, 119 S.Ct. 469 (Kennedy, J., concurring) (emphasis added). Justice Kennedy noted that the defendants in Carter were not social guests but had used the apartment merely as a processing station to prepare drugs for sale. Relying on the specific facts presented in Carter, Justice Kennedy concluded that the defendants were an exception to the rule that social guests will have an expectation of privacy. He wrote:

I join the Court’s opinion, for its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.

Id. at 99, 119 S.Ct. 469. In summary, Minnesota v. Carter stands for the proposition that “parties who are in a residence for only a few hours, on ‘business,’ and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest the search of the premises (as opposed to then-personal belongings).” Whitebread and Slobogin, Criminal Procedure, An Analysis of Cases and Concepts 135 (4th ed 2000).

[¶ 16.] Following Carter, several decisions have recognized that social guests who fall somewhere between the overnight guest in Olson and a guest simply permitted on the premises have a legitimate expectation of privacy and may mount a Fourth Amendment challenge to searches and seizures. See United States v. Fields, 113 F.3d 313, 317-21 (2d Cir.1997), cert. denied, 522 U.S. 976, 118 S.Ct. 434, 139 L.Ed.2d 334 (1997) (guest who prepared cocaine in the householder’s young son’s bedroom with her permission; could and did bring guests to the residence, with whom he drank beer and watched television; possessed a key; had used the premises 40 to 50 times; and could come and go even in the householder’s absence had a legitimate expectation of privacy, even though he did not spend the night there, citing Olson)-, United States v. Gamez-Orduno, 235 F.3d 453, 459 n. 8 (9th Cir.2000) (status as overnight guest may not be necessary, quoting 5 Wayne R. LaFave, Search and Seizure § 11.3, at 15 (3d ed Supp 2000), which stated that “the several opinions in Carter add up to a ‘different majority ... [that] actually embraced the position that a social guest would not have to be an overnight guest in order to have standing in the premises of another’”); United States v. Rhiger, 315 F.3d 1283 (10th Cir.2003) (defendant was a “social guest” at his host’s home, and therefore had standing to object to federal drug agents’ search of the house, where he had known the host for about two weeks, had a regular presence at the home, stayed overnight at the house on a few occasions when he was too intoxicated to drive, had receipts in the house for items he had purchased, and was comfortable enough to enter the residence unannounced to take a nap); Welfare of B.R.K., 658 N.W.2d 565 (Minn.2003) (minor, a social guest in host’s home for a party, had a reasonable expectation of privacy in host’s home to invoke his Fourth Amendment protections to challenge a warrantless search of host’s home). Although it could be argued that this Court in Westerfield previously determined that ah occasional guest has no reasonable expectation of privacy in property owned by another, that 1997 decision predated Carter.

[¶ 17.] Like the overnight guest in Olson, Hess was much closer to the status of an overnight guest than one who was simply permitted on the premises. Deciding whether a person has a legitimate expectation of privacy is made on a case-by-case basis, considering the facts of each particular situation. State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998). Here, the burden was on Hess to show that he had a reasonable expectation of privacy in his girlfriend’s apartment. Carter, 525 U.S. at 88, 119 S.Ct. 469. At the suppression hearing, testimony revealed that Hess had an intimate relationship with Wright. In addition, while it was uncertain whether Hess would have stayed overnight with Wright on that particular evening, he had previously spent the night on several occasions. Thus, he was not just a visitor or party guest. See State v. Patterson, 966 S.W.2d 435, 441 n. 5 (Tx.Crim.App.1997). On the day of the search, except when they left briefly to eat, Hess had been at the apartment all afternoon watching a movie with Wright. Furthermore, Hess had a back pack in the apartment and apparently felt comfortable enough to take off his shoes. He had the freedom to go into Wright’s bedroom and close the door without Wright. By closing the door to Wright’s bedroom, Hess exercised control of the room and the ability to exclude others. On these facts, we conclude that Hess had a reasonable expectation of privacy in his girlfriend’s apartment.

Good Faith

[¶ 18.] Having established that Hess had a legitimate expectation of privacy in his girlfriend’s apartment, specifically the room in which the evidence was found, we now turn to the merits of his motion to suppress. With respect to the mistaken approach and entry of a wrong address to execute an arrest warrant, we are unaware of any authority directly on point. To resolve this case, therefore, we analyze two species of law enforcement mistakes: arrests of the wrong person with a valid arrest warrant, and searches of the wrong premises with a valid search warrant. In both instances, the Supreme Court has upheld the arrest and search when the officers acted in objective good faith.

[¶ 19.] In Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), the police had probable cause to arrest a person named Hill but mistakenly arrested Miller. At the time of the arrest, Miller was at Hill’s apartment and fit Hill’s description. The Court resolved the questions whether Miller’s arrest was valid and whether a search of Hill’s apartment upon Miller’s arrest was also valid. As to the arrest, the Court wrote:

Based on our own examination of the record, we find no reason to disturb either the findings of the California courts that the police had probable cause to arrest Hill and that the arresting officers had a reasonable, good-faith belief that the arrestee Miller was in fact Hill, or the conclusion that “[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.”

Id. at 802, 91 S.Ct. 1106. As for the search, the Court stated that “the police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill[.]” Id. at 804, 91 S.Ct. 1106.

[¶ 20.] In Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), the police reasonably believed both when they applied for and when they executed a search warrant that the building to be searched contained one third floor apartment. But the third floor was actually divided into two apartments. Consequently, the police searched both the apartment the warrant affidavit established probable cause for and the adjoining apartment. Upholding the validity of the conviction based on evidence found in the adjoining apartment, the Court wrote:

While Hill involved an arrest without a warrant, its underlying rationale that an officer’s reasonable mis-identification of a person does not invalidate a valid arrest is equally applicable to an officer’s reasonable failure to appreciate that a valid warrant describes too broadly the premises to be searched.

Id. at 87-88, 107 S.Ct. 1013. Thus, the standard is whether the “officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” Id. at 88, 107 S.Ct. 1013. See also Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir.1995) (“the execution of a valid warrant on the wrong premises violates the Fourth Amendment if the officers should know the premises searched are not the premises described in the warrant, i.e., the officers’ mistake is not objectively reasonable”).

[¶ 21.] To resolve our case, we rely on the combined analyses of Hill and Garrison. In general, these two cases hold that to sustain the validity of such an arrest or search, the prosecution must show that the warrant was valid and that the police acted with objective reasonableness. Here, there is no dispute concerning the validity of the warrant for Corey’s arrest, and the circuit court was satisfied that the deputies reasonably believed that they were at Corey’s home to serve the warrant. A valid arrest warrant implicitly grants to police the limited authority to enter a suspect’s residence “when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603, 100 S.Ct. at 1388. In this case, both adjacent houses had almost the identical address, with the exception that one had the number “⅜” in smaller size next to the larger house number. The circuit court specifically concluded that even if Hess had an expectation of privacy, the officers’ “actions in approaching the poorly marked residence and peering inside to determine whether [Corey] was present was done in good faith and was objectively reasonable.” As this finding contains factual and credibility determinations, as well as legal conclusions, we will not reverse the factual rulings unless they were manifestly erroneous. Because the touchstone of search and seizure analysis is reasonableness, we conclude that based on the entirety of circumstances, the officers did not violate the Fourth Amendment by their approach and glance in the window of the home they believed was the home of the intended arrestee. Whether they were entitled to enter the home based on what they saw will be the next step in our analysis.

Exigent Circumstances

[¶ 22.] We earlier noted that the Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. As the United States Supreme Court explained, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direeted[.]” United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972). Accordingly, it is well established that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980). Generally, this means that, with some specifically delineated exceptions, every law enforcement entry into a home for the purpose of search and seizure must be made with a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Lamont, 2001 SD 92, ¶ 50, 631 N.W.2d at 617.

[¶ 23.] The State has the burden of proving that a specific search falls into a delineated and limited exception. See State v. Heumiller, 317 N.W.2d 126, 128 (S.D.1982); State v. Max, 263 N.W.2d 685, 687 (S.D.1978). Legal analysis is limited to “the facts perceived by the police at the time of the entry, not as subsequently uncovered.” Lamont, 2001 SD 92, ¶ 50, 681 N.W.2d at 617 (citing State v. Meyer, 1998 SD 122, ¶ 23, 587 N.W.2d 719, 724 (citing Heumiller, 317 N.W.2d at 129)).

[¶ 24.] Exigent circumstances will justify a warrantless entry into a home for the purpose of either arrest or search. Payton, 445 U.S. at 590, 100 S.Ct. at 1382. Such circumstances exist when there is an emergency: a situation demanding immediate attention with no time to obtain a warrant. Heumiller, 317 N.W.2d at 129 (citations omitted). A common example is hot pursuit. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

[¶ 25.] A gauge for determining whether exigent circumstances existed is to ask whether police officers, under the facts as they knew them at the time, would reasonably have believed that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspects escape. Max, 263 N.W.2d at 687 (citation omitted); Meyer, 1998 SD 122 at ¶ 23-24, 587 N.W.2d at 724. The analysis of whether this exception to the warrant requirement has been made out is an objective one centering on what a reasonable, experienced law enforcement officer would have believed. United States v. Clement, 854 F.2d 1116, 1119 (8th Cir.1988). As Justice Jackson wrote, “When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.” McDonald v. United States, 335 U.S. 451, 460, 69 S.Ct. 191, 195-96, 93 L.Ed. 153 (1948).

[¶26.] Although the parties cite us to no case on point, there are numerous analogous cases dealing with the question whether the odor of burning marijuana provides exigent circumstances for a war-rantless entry into a residence. These cases from other jurisdictions hold that because the smell of burning marijuana is itself proof that evidence of criminal conduct is being destroyed, the detection of that smell establishes exigent circumstances. See State v. Decker, 119 Ariz. 195, 580 P.2d 333 (1978); State v. Kosman, 181 Ariz. 487, 892 P.2d 207 (Ct.App.1995); Mendez v. People, 986 P.2d 275 (Colo.1999); People v. Baker, 813 P.2d 331 (Colo.1991); Joseph v. State, 3 S.W.3d 627 (Tex.App.1999); see also Donald M. Zupanec, Annotation, Odor of Narcotics as Providing Cause for a Warrantless Search, 5 A.L.R.4th 681 (1981). But see Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (smell of burning opium alone cannot create probable cause to effect a warrantless search and arrest).

[¶ 27.] On the other hand, many other courts hold that the smell of burning marijuana does not evince a sufficiently grave offense to justify entering a residence without a warrant. These courts rely on the distinction between minor and serious offenses made by the United States Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). See State v. Curl, 125 Idaho 224, 869 P.2d 224 (1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1293, 127 L.Ed.2d 646 (1994); Haley v. State, 696 N.E.2d 98 (Ind.Ct.App.1998); State v. Beeken, 7 Neb.App. 438, 585 N.W.2d 865, 872 (1998) (dictum); State v. Wagoner, 126 N.M. 9, 966 P.2d 176 (N.M.CtApp.), cert. denied, 125 N.M. 654, 964 P.2d 818 (N.M.1998); State v. Ackerman, 499 N.W.2d 882 (N.D.1993); State v. Robinson, 103 Ohio App.3d 490, 659 N.E.2d 1292 (1995); State v. Ramirez, 49 WashApp. 814, 746 P.2d 344 (1987).

[¶ 28.]To understand the distinction between serious and minor offenses, we must closely examine the Welsh decision, which is binding on us under the Supremacy-Clause of the United States Constitution. In Welsh, the Court concluded that the police violated a driver’s Fourth Amendment rights by arresting him in his home without a warrant for DUI. The police had claimed that exigent circumstances justified entry into the driver’s home to obtain his blood-alcohol level because he had fled the scene of an accident. Id. at 742, 104 S.Ct. 2091. As it had on several earlier occasions, the Court emphasized that the “police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Id. at 749-50, 104 S.Ct. 2091. The opinion noted that only “hot pursuit of a fleeing felon,” “destruction of evidence,” and “ongoing fire” were recognized by the Court as emergency situations justifying a warrantless search or arrest, and that heretofore only the “hot pursuit” doctrine was applied to arrests in the home. Id. at 750, 104 S.Ct. 2091. Furthermore, the Court wrote:

Our hesitation in finding exigent circumstances, particularly when warrant-less arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

Id. at 750, 104 S.Ct. 2091 (citations omitted) (emphasis added). The Court held that an important factor in determining whether an exigency exists is “the gravity of the underlying offense for which the arrest is being made.” Id. at 753, 104 S.Ct. 2091.

[¶ 29.] Unlike marijuana offenses, which are ordinarily misdemeanors, possession of methamphetamine is a felony in South Dakota. SDCL 22-42-5. In South Dakota, law enforcement officers may make a warrantless arrest when they have probable cause to believe that the person to be arrested has committed a felony or a class one misdemeanor. SDCL 23A-3-2 (2). The deputies saw Hess and his companion in possession what they believed to be methamphetamine. Unquestionably, possession of a controlled substance, like methamphetamine, is a serious offense. Cf. Clement, 854 F.2d at 1119-20 (8th Cir.1988) (citing Welsh, noting the necessity of looking to the gravity of the offense, and characterizing cocaine trafficking as “a serious offense” that justified entry into hotel room). See Lamont, 2001 SD 92, 631 N.W.2d 603 (hit and run homicide—officers justified in warrantless entry to motel room where critical evidence of suspect’s BAC was dissipating by the minute). Moreover, Hess and his companion were in the process of consuming this evidence. Compare State v. Hughes, 233 Wis.2d 280, 607 N.W.2d 621, 628 (2000), where a war-rantless entry was upheld because, under the circumstances, the apartment occupants had every incentive to intentionally destroy evidence because they knew the police were present outside. As the court held in United States v. Haddix, 239 F.3d 766, 769 (6th Cir.2001), “notwithstanding the ease in which narcotics can be destroyed, a warrantless entry into the home of a suspected drug trafficker, effected without an objectively reasonable basis for concluding that the destruction of evidence is imminent, does not pass constitutional muster.” In this case, however, the destruction of the evidence was taking place at the very moment the deputies were peering through the window. Thus, the warrantless entry here can be justified under the exigent circumstances exception.

[¶ 30.] In summary, we conclude that Hess had standing to challenge the war-rantless entry and search of the bedroom where he was seen consuming a controlled substance. Nonetheless, the deputies were rightfully in a position to see this illegal conduct while they held the good faith but mistaken belief that they were about to serve a valid arrest warrant on a person inside the home. Once they observed Hess using methamphetamine, exigent circumstances existed allowing the deputies to enter the home, arrest him, and seize the evidence. Thereafter, one of the permanent residents of the home gave further permission for a continued search of her bedroom.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶ 33.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 34.] I concur with the majority opinion’s determination that Hess had a reasonable expectation of privacy in his girlfriend’s apartment. I dissent from the majority opinion’s conclusions of good faith and exigent circumstances.

[¶ 35.] The majority opinion characterizes the officers’ initial actions as an “approach and glance” in the window of the home. Majority opinion, ¶ 21. This characterization implies that the officers’ actions were only minimally intrusive. On the contrary, the officers’ “approach and glance” was an unwarranted intrusion, in the middle of the night, by law enforcement officers, into a woman’s bedroom. Even Deputy Moore described their activity that evening as more than merely approaching or glancing into the window. He testified that he went onto the property, crossed into the carport, and peered through the closed blinds of a bedroom window to see what was going on inside. The deputy saw two men sitting on a bed, but could not see what they were doing. Unsatisfied with this view, the deputy went to yet another covered window on the back side of the home, and looked inside again. It was at the second window that he allegedly saw the two men smoking methamphetamine. After observing the subjects for a moment, the deputy called another deputy over to have a look in the window. The deputy finally proceeded to the front door and knocked. Before the home’s lessee could open the door, the deputy “pushed the door open and Deputy Smith held [the lessee]” while Deputy Moore proceeded tu the bedroom where the subjects were first spied upon.

[¶ 36.] Before this Court reaches the question whether exigent circumstances justified the search, it must be determined whether the officers were lawfully allowed to peer into the covered window in the middle of the night. I agree with the Florida District Court of Appeals’ statement in a similar case:

Regardless of [the officer’s] good faith, the implications of sanctioning police surveillance by standing in a yard at one’s window in the middle of the night are too obvious to require elaboration.

Olivera v. Florida, 315 So.2d 487, 491 (Fla.App. 2 Dist.1975). There is significant reason to doubt that the officers’ actions in this case were objectively reasonable.

[¶ 37.] First, it is important to note that the officers had an arrest warrant, not a search warrant. This Court has discussed the different interests protected by arrest and search warrants:

An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure. A search warrant, in contrast is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individuals interest in the privacy of his home and possessions against the unjustified intrusion of the police.

State v. Meyer, 1998 SD 122, 31, 587 N.W.2d 719, 725 (quoting Steagald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38, 46 (1981) (emphasis supplied)). Even assuming the police had been at the right home when they decided to peer into the bedroom, they exceeded the authority granted by the arrest warrant when they went onto the curtilage of the property and looked into two covered windows, one of which was under a carport and the other on the backside of the house. This is so because:

An arrest warrant is not the equivalent of a search warrant with respect to the authority it gives state agents to enter or to search in or around a suspects premises. An arrest warrant authorizes an officers entry into a suspects residence only to the extent necessary to accomplish the purpose of the warrant, which is to effectuate the arrest of the defendant.

State v. Northover, 133 Idaho 655, 661, 991 P.2d 380, 386 (1999) (Lansing, Judge, concurring in result)). Even assuming for the moment that the officers had been at the right home, there was no justification for looking into a covered window prior to announcing their presence and the purpose of the call.

[A]n arrest warrant does not automatically give officers carte blanche authority to search the grounds around the home or to intrude onto the private cur-tilage in order to peer into windows where the officers have not first ascertained whether the suspect will respond to a knock on the door and submit to arrest.

Id. This is particularly so when there is no indication on the record that there was a possibility that the person for whom they had the arrest warrant was violent, had a history of escape, or possessed evidence of the underlying crime that he would attempt to destroy. More disturbing is the fact that neither of the subjects in the bedroom fit the description of the person described in the arrest warrant.

[¶ 38.] When an officer intrudes into an area protected by the Fourth Amendment, the State has the burden of proving an exception to the warrant requirement. The State made no effort to come forth with evidence to justify this intrusion other than the fact that the officers held an arrest warrant. An arrest warrant does not make every house on the street fair game to a peeping officer. The arrest warrant for Corey protected Corey’s interest in ensuring the police had probable cause to seize his person. That warrant did nothing to protect Hess’ interest in insuring that police had probable cause to search the home he was visiting. An arrest warrant is an insufficient device and inadequate under these circumstances to defeat the reasonable expectation of privacy held by Hess and the lessees of the house; that is, then’ reasonable expectation of privacy in a bedroom, in the middle of the night, behind covered windows.

[¶ 39.] As apparent additional justification for the police intrusion, the majority opinion makes reference to the plain view doctrine. However, the reference to the plain view doctrine does nothing to bolster the determination that the officers’ actions were permissible in a constitutional sense. The plain view doctrine presupposes that the officer was in a place where he had a right to be and that he had a lawful right of access to the object in plain view. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The majority opinion makes no attempt to establish that the officers had a right to bypass the front door of the home, enter the carport, peek in a covered window, walk around the back of the wrong house and peek into yet another covered window. The plain view doctrine is inapplicable in this case because the officers had no right to be within the curtilage of the home peering into the windows of the wrong house with only an arrest warrant.

[¶ 40.] The State spends considerable time discussing the reasonableness of the officers’ activities but fails to justify the failure to ascertain whether they were searching the proper house. Having noticed that the two homes were adjoined by the carport, a reasonable officer would have at least flashed his or her flashlight over the house numbers on the adjoining building to ensure that they were proceeding to the proper address. They did not in this case. The State argues that the officers reasonably believed they were at the proper house because it was dark outside and difficult to see the “1/2” on the end of the house number. Yet it was the officers who chose to execute the arrest warrant at 11:00 at night, chose not to drive by in daylight hours to make certain they had the proper home, and chose to peer into covered bedroom windows rather than simply knocking on the door and announcing their presence. Worse, Deputy Moore testified that he walked across the front lawn of # S9S6 to get to 3936½. He also testified that it was not the actual address of the home that drew his attention, but rather, the fact that there were lights on and a vehicle running in front of # 3936½. It is unfathomable how this can be construed as an objectively reasonable procedure for executing a felony arrest warrant at # 3936.

[¶ 41.] Furthermore, later in the evening, while standing on the front porch, the officers were able to see the “1/2” at the end of the address. This begs the question why they were unable to see the “1/2” when they were standing on the porch prior to their forcible entry into the home, or why the deputy standing at the front of the house while the others peeked into the windows did not look at the address and notice the “1/2” sign. Any of these reasonable steps would have prevented this so-called “good faith” mistake.

[¶ 42.] Logic dictates that if there were reasonable steps the officers should have taken to prevent the unwarranted intrusion into the home of a presumptively innocent person, and the officers failed to take those steps, then the search was not objectively reasonable, and the good faith exception to the warrant requirement does not apply.

[¶ 43.] I also dissent from that portion of the majority opinion holding that exigent circumstances justified warrantless forcible nighttime entry into the home. The majority opinion relies on the fact that evidence was being destroyed because the defendant was ingesting the methamphetamine. Defendant was charged with possession of a controlled substance in violation of SDCL 22-42-5, and inhalation of a substance for the purpose of becoming intoxicated in violation of 22-42-15.

[¶ 44.] SDCL 22-42-5 provides in part: No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner[]. A violation of this section is a Class 4 felony.

SDCL 22-42-15 provides in part:

Any person who intentionally ingests, inhales, or otherwise takes into the body any substance [] for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts [], is guilty of a Class 1 misdemeanor. The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused.

This Court has clearly held that a positive urinalysis which reveals the presence of a controlled substance is sufficient to support a conviction under SDCL 22-42-5. See State v. Schroeder, 2004 SD 21, 674 N.W.2d 827. Likewise, by the statute’s plain language, simply detecting the substance in the defendant’s body is sufficient to sustain a conviction under SDCL 22-42-15. Therefore, the fear that evidence was being destroyed in the home was wholly insufficient justification for the officer’s warrantless entry into the home. Assuming for the moment that they were legally on the premises, the officers should have maintained the status quo and obtained a search warrant to enter to house and conduct a urinalysis on the defendants.

[¶ 45.] The majority opinion’s concern with the seriousness of the crime of possession of methamphetamine becomes irrelevant in light of the fact that whether the evidence was lying on the floor of the bedroom or ingested into the body of the defendant, it remained accessible to the officers. The State bears a heavy burden to prove an exception to the warrant requirement, particularly when it has engaged in a nighttime intrusion into a home. The State has not met that burden. We should reverse the trial court’s decision denying the defendants motion to suppress this illegally obtained evidence.

[¶ 46.] MEIERHENRY, Justice joins this special writing.

      . Deputy Moore testified that their typical procedure when serving a felony arrest warrant is to park a distance from the house and walk around the house to see if anyone is inside in order to secure the officers' safety.

      . Testimony revealed that there were two types of window coverings on the windows. The outermost layer consisted of horizontal blinds and the inner layer was a bamboo shade. There is some question on whether both layers were pulled on the window under the carport.

      .Deputy Moore testified that when he looked in the first window he was about one and one-half feet from it; when he looked in the window under the carport he was approximately four feet away.

      . The United States Supreme Court in United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 52 L.Ed.2d 677 (1984), stated that the exclusionary rule should be applied only in those circumstances where it is clear that its application will deter police misconduct. Exclusion of evidence here based on the war-rantless search and entry of the wrong residence on the good faith but mistaken belief that it was the proper residence would not deter future police misconduct.

      . For the seizure of evidence to be admissible under the plain view exception to the warrant requirement, (1) the officers must not have "violate[d] the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990). And (2) the discovery of the evidence "must be inadvertent; and its evidentiary value must be immediately apparent to the officer.” State v. Kelly, 130 Ariz. 375, 636 P.2d 153, 156 (1981) (citations omitted).

      . The common law definition of curtilage is: [T]he area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life,” □ ■ and has therefore been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended the Fourth Amendment protection to the curti-lage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.

        State v. Vogel, 428 N.W.2d 272, 275-76 (S.D.1988) (additional and internal citations and quotations omitted). Certainly, if a police officer draws close enough to a home to peek into two bedroom windows, one can safely assume he has entered the curtilage of the home.

      . The arrest warrant was based on a vehicular homicide occurring weeks before the warrant was issued. The arrestee was accused of reckless driving in that he ran a stop light at a high rate of speed and caused a collision, resulting in a fatality. Both vehicles involved in the accident were already in police custody-


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2004 SD 61
    In the Matter ESTATE OF Lawrence HOLAN, Deceased.
    No. 22955.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2004.
    Decided May 5, 2004.
    Wally Eklund of Johnson, Eklund, Nicholson & Peterson, Gregory, SD, for appellant Dennis Holán.
    Brett M. Koenecke of May, Adam, Gerdes & Thompson, Pierre, SD, for ap-pellees Lynette Leifermann, Judene Ho-lán, Duane Holán, and Dean Holán.
   KONENKAMP, Justice.

[¶ 1.] Interest usually begins to accrue on pecuniary devises either at the time set by statute or the time set in the will. The question presented here is whether a delay in the settlement of an estate caused by a will contest and a dispute on valuation will also delay the time interest begins to accrue on such devises. In this case, the circuit court ruled that, despite the delay in settlement, interest accrued from the date of death, as provided in the testator’s will. Although there is a split of authority on the question, we adopt the majority view that delay in settlement will not delay accrual of interest because such a rule more closely honors testamentary intent, in that it bases the accrual of interest on an initial point that cannot be moved by fortuities in the probate process, thus allowing testators to provide certainty in their pecuniary bequests. We affirm.

Background

[¶ 2.] Lawrence Holán died on April 11, 1998. A widower, Lawrence was survived by six children. His estate consisted of farm equipment, a house in Pukwana, and 1,358.5 acres of farmland. Shortly after his death, Lawrence’s daughters, Judene Holán and Lynette Leiferman, offered for probate a will dated March 3, 1997. Dennis Holán contested the admission, arguing that the will was the product of undue influence. He offered instead, Lawrence’s will of May 15,1991 and its codicil.

[¶ 3.] The significant difference between the two wills was the disposition of the farmland. Under the 1997 will, Lawrence devised to Dennis 80 acres in Brule County. The remainder of Lawrence’s estate was to be divided in equal shares among the six children. Under the 1991 will, Lawrence left his home in Pukwana to the other five siblings and his farm property to Dennis, provided that he make payments over a fifteen-year period to his siblings equaling their share of the appraised value of the farmland at the time of Lawrence’s death.

[¶ 4.] In November 1999, a jury ruled that the 1997 will was made through the undue influence of Lynette and Judene. We affirmed the verdict in Estate of Holan, 2001 SD 6, 621 N.W.2d 588. On remand, the 1991 will and its codicil were admitted to probate. On April 11, 2002, the court valued the farmland Dennis received under the will, and it ordered Dennis to pay each of the five devisees 13.3 percent of the value of the farmland. The payments were to be in fifteen annual installments, with interest at the rate of 5.98 percent calculated from the decedent’s date of death, April 11, 1998, with the first of the annual payments due and owing as of April 11,1999.

[¶ 5.] On appeal, Dennis challenges the circuit court’s decisions in ordering him to pay interest (1) calculated from the date of death of the decedent, and (2) at the rate permitted by the Internal Revenue Service at the time of Lawrence’s death instead of the lower rate later approved by the IRS. Under our standard of review, we will not set aside trial court findings of fact unless they are clearly erroneous. Estate of Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490 (citations omitted). Conclusions of law and rulings on statutory interpretation are reviewed de novo. Osloond v. Osloond, 2000 SD 46, ¶¶ 6-7, 609 N.W.2d 118, 121.

1. Interest Calculated From the Date of Death

[¶ 6.] Dennis contends that the interest he was required to pay under the will should not have been calculated from the date of death. Because it was not possible to figure the amount on which interest was due until April 11, 2002, the day the circuit court ruled on the proper valuation for the farmland, Dennis insists that it was not possible for him to perform his obligations. For their part, the other siblings argue that from the date of Lawrence’s death Dennis had possession of the farmland and he benefited from the use of that property for six crop seasons.

[¶ 7.] The gist of Dennis’s position is that from the date of Lawrence’s death until April 11, 2002, he was prohibited from making the payments because of the actions of Lynette and Judene acting as personal representatives, and because a value was not placed upon the property before that time. His argument is premised on several sections of the South Dakota Codified Laws, Title 20, dealing with excuse for want of performance because of delay or prevention. These statutes are not pertinent to the issue here. Instead, we look to Title 29A, the Uniform Probate Code.

[¶ 8.] SDCL 29A-3-101 provides:

The power of a person to leave property by will, and the rights of creditors, devi-sees, and heirs to the person’s property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, that person’s real and personal property devolves to the persons to whom it is devised by will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, rights of creditors, elective share of the surviving spouse, and administration.

Under this statute, “real and personal property devolves to the persons to whom it is devised,” at the time of the testator’s death. Dennis does not argue that SDCL 29A-3-904 applies. That statute provides:

General pecuniary devises bear interest at the category B rate of interest specified in § 54-3-16 beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.

Here, the will indicated a contrary intent because it provided an alternative interest rate and the first payment with interest was to begin one year from the date of Lawrence Holan’s death. Nor does Dennis argue that he did not receive the property devised to him by the will. He simply believes that it was impossible or impracticable for him to perform his obligation under the will. We must examine this question not simply from Dennis’s perspective but also from the perspective of the remaining siblings, who were entitled to their bequests from the date of Lawrence’s death.

[¶ 9.] While there is some conflict in the cases on whether a will contest stays the accrual of interest, the majority view is that it does not. See Estate of Vaden, 677 P.2d 659 (Okla.Ct.App. 1983); 97 C.J.S. Wills § 2013 (2001). Courts refusing to deviate from a statutory commencement date for interest reason that the right to receive interest is incident to the legacy itself. Vaden, 677 P.2d at 665. Those receiving a money legacy are in a similar position to creditors and are therefore entitled to interest from the time they would have received payment absent the delay from a will contest. This rationale accords with testamentary intention: wills are ordinarily made with the expectation that distribution will not be postponed. When delays occur from a will contest, they may lessen the value of the bequest.

[¶ 10.] Although we concede some force to Dennis’s excuse that the lack of a judicially determined valuation on the property and a delay caused by the will contest presented impediments to the performance of his obligations under the will, we think the general rule better comports with testamentary intent. The rale has the advantage of setting a beginning point for interest accrual that cannot be changed by the vagaries of the probate process, and thus it enables testators to give certainty to their bequests without a need to use special provisions. Woodward’s Estate v. Holton, 78 Vt. 254, 62 A. 718 (1906). We think the general rule should apply even where, as here, some of the devisees opposed the will. Therefore, the siblings were entitled to interest on their pecuniary devises from the date of Lawrence’s death.

2. Rate of Interest Set as of Date of Death

[¶ 11.] Dennis next argues that because the will provided for the lowest interest rate permitted by the Internal Revenue Service to avoid the imputed interest rule, the rate should have been 5.48 percent, set by the IRS sometime after Lawrence’s death, and not the 5.98 percent rate in existence at the time of Lawrence’s death. Given our holding that the trial court was correct in ruling that the date interest began to accrue was the date of Lawrence’s death, it seems only logical that the rate of interest due would be set as of that date. Property devised under a will devolves at the time of death and the applicable rate of interest should fix at the same time. We are not persuaded by the argument that the trial court was bound to fix the lowest possible interest rate in existence at any time during the pendency of the estate proceedings.

[¶ 12.] Affirmed.

[¶ 13.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Specifically, the 1991 will gave to Dennis
      all of the rural real property of which I may die seize; Provided, however, that such devise shall be charged with the payment by Dennis to each of my other five children an amount equal to Thirteen & Three-tenths percent ... of the appraised value at my death, to be paid in amortized payments over a period of Fifteen ... years at the annual interest rate of Nine percent ... or the amount permitted by the Internal Revenue Service to avoid the imputed interest rule, whichever shall be lesser, the first such payment to be due within One ... year of the date of my death.

      . Although Dennis does not assign it as error, he complains that the circuit court's order requires him to pay 15 percent on past due sums. The court ruled that inasmuch as it did not set a rate of interest until August 5, 2002, it would be inequitable to declare sums due before that date to be past due. Therefore, the court ruled that “the interest rate of 5.98 percent shall be the rate on all payments due from the date of death through August 5, 2002, including any that have been past due under the annualized payment requirement accruing up to August 5, 2002. Thereafter, the appropriate rate provided under our South Dakota statutes on amounts due and unpaid would apply.”


author: CADY, Justice.

text:
    STATE of Iowa, Appellant, v. Jerel Howard GREEN, Appellee.
    No. 03-0639.
    Supreme Court of Iowa.
    April 7, 2004.
    As Amended on Denial of Rehearing June 11, 2004.

      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Matt Wilber, County Attorney, Christine M. DeLorme, Assistant County Attorney, and Tina Kaeding, Student Legal Intern, for appellant.
    Patrick A. Sondag, Council Bluffs, for appellee.
   CADY, Justice.

In this appeal, we consider whether a phlebotomist is qualified to “withdraw a specimen of blood for the purpose of determining the alcohol concentration” in a prosecution for operating a motor vehicle while intoxicated. Iowa Code § 321J.11 (2003). The district court concluded that a phlebotomist is not included in the list of individuals who may withdraw a blood sample for testing and suppressed evidence of the defendant’s blood alcohol concentration garnered from a sample obtained by a phlebotomist. The State sought discretionary review of the district court’s decision, and we now reverse and remand this case for further proceedings consistent this opinion.

I. Background Facts and Proceedings.

Jerel Howard Green (Green) was injured in a single-vehicle accident in Council Bluffs on June 14, 2002. Green was transported to a hospital in Omaha, Nebraska, for treatment of his injuries. The circumstances surrounding the accident led sheriffs deputies at the scene to suspect alcohol was involved. One of the deputies was ordered to go to Omaha to meet with the defendant and obtain a blood sample for alcohol content testing.

After arriving at the hospital, the deputy sought approval from Green’s treating physician for the withdrawal of a sample. The physician refused to provide consent and opined that Green could and should be approached personally. The deputy then spoke with Green, concluded he was coherent, and read an implied consent advisory to him. Green then signed an implied consent form, which permitted the withdrawal of his blood for testing. After Green’s consent was obtained, Kathleen Tinley (Tinley), a phlebotomist employed by the hospital, came and withdrew Green’s blood sample. Green’s sample revealed that his blood alcohol content was above the legal limit. He was later charged by trial information with operating a motor vehicle while intoxicated. Id. § 321J.2.

Green filed a motion to suppress the results of his blood test and the contents of his conversation with the deputy. He contended that, his condition on June 14 rendered him incapable of consenting to the withdrawal and the deputy failed to properly invoke implied consent. See id. § 321J.7 (providing a limitation on the invocation of implied consent in situations in which the defendant is unconscious or otherwise incapacitated). He also asserted that his statements to the deputy were involuntary and in violation of rights recognized by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He subsequently amended his motion to further detail his arguments for suppression. However, Green never asserted in either version of his motion that the blood withdrawal was impermissible because a phlebotomist had conducted it.

A suppression hearing was held on March 6, 2003. At the hearing, the deputy who had sought Green’s blood sample testified to his actions on June 14 and his interaction with Green in seeking his consent for the blood withdrawal. Tinley also testified, briefly outlining her job duties and her actions in withdrawing Green’s blood. Tinley stated that she had been employed by the hospital for three years, but no further testimony was elicited about her background or qualifications. She also explained that her involvement with Green conformed to the standard procedure followed in similar situations, namely that no blood was withdrawn without patient or doctor consent.

On March 18, the district court issued its ruling sustaining Green’s motion to suppress. The district court concluded that Tinley, as a phlebotomist, was not “one of the individuals approved by the Code of Iowa to take a blood sample for the purpose of determining alcohol concentration.” The district court based this conclusion on its analysis of Iowa Code section 321J.11, which provides, in part:

Only a licensed physician, licensed physician assistant as defined in section 148C.1, medical technologist, or registered nurse, acting at the request of a peace officer, may withdraw a specimen of blood for the purpose of determining the alcohol concentration....

In analyzing the statute and reaching its conclusion, the district court observed:

A phlebotomist is defined as one who collects blood samples and body fluids from patients ... for laboratory testing. A general medical knowledge is helpful but not required.
In this case, there is no question Ms. Tinley is not a licensed physician, licensed physician assistant, or a registered nurse. A medical technologist is defined as one who performs a full range of laboratory tests. They are also responsible for confirming the accuracy of test results and reporting lab findings to the pathologist and other doctors. One can become a phlebotomist with as little as three week[’]s training. To become a medical technologist, a bachelor[’]s degree is required.

A subsequent motion to reconsider filed by the State was denied. The State then sought discretionary review, which we granted. For the reasons set out below, we reverse the district court’s order suppressing the results of Green’s blood test and remand this case for further proceedings consistent with this opinion.

II. Standard of Review and Preservation of Error.

Our review of the district court’s interpretation of Iowa Code section 321J.11 is for correction of errors at law. See Iowa RApp. P. 6.4; State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003). While “the district court’s findings of fact are binding on this court if supported by substantial evidence^] ... we are not bound by the district court’s conclusions of law.” Horsfield Constr., Inc. v. Dubuque County, 653 N.W.2d 563, 568 (Iowa 2002) (citations omitted).

The record contains no indication that either party fully anticipated the issue related to Tinley’s qualifications on which the district court sustained Green’s suppression motion. Green never raised the issue in either version of his suppression motion. Perhaps not surprisingly, the State never presented evidence relevant to Tinley’s qualifications beyond standard introductory material to be expected when a party is introducing a witness. However, Green eventually raised the issue of Tinley’s qualifications at some point during the suppression hearing proceedings after he was informed, apparently for the first time, that Tinley was a phlebotomist. The State did not present' any further evidence in response to Green’s objections at the suppression hearing, but later filed a motion to reconsider requesting the opportunity to introduce additional qualifications evidence. The State’s motion was denied. This course of proceedings and rulings served to preserve error for our review.

III. Phlebotomists as Medical Technologists.

The term “phlebotomy” is derived from two Greek words: “phlebos, meaning veins, and tome, meaning incision.” Ruth E. McCall & Cathee M. Tankersley, Phlebotomy Essentials 4 (3d ed.2003). The practice of phlebotomy has existed in various forms for centuries, but has evolved and transformed over time in light of advances in medical science. See id. at 4-8. Phlebotomy is now generally defined as “Incision into or needle puncture of a vein for the purpose of drawing blood.” Sted-man’s Med. Dictionary 1369 (27th ed.2000).

Much of the phlebotomy that occurs in a modern medical setting is performed by phlebotomists, “individual[s] trained and skilled in phlebotomy.” Id. These individuals are typically “educated in formal programs and on the job training, and credentialed through national certification examinations.” Am. Soc’y for Clinical Lab. Sei., Phlebotomy, Clinical Lab. Sci., Mar./Apr.l999, at 70. In fact, phlebotom-ists are now “recognized as key personnel ■¡who are well prepared to assume additional roles to meet healthcare needs.” Id.

Iowa Code section 321J.11 permits “[ojnly a licensed physician, licensed physician assistant ..., medical technologist, or registered nurse” to withdraw a blood sample for alcohol content testing. Clearly, phlebotomists are not specifically mentioned in the statute as individuals qualified to withdraw blood for testing. It is also undisputed that a phlebotomist is not a licensed physician, licensed physician assistant, or registered nurse as those terms are used in the statute. See id. Instead, the controversy in this case hinges on whether a phlebotomist—in this case, Tin-ley specifically—is a medical technologist for purposes of the withdrawal statute. Id.

The district court concluded that a phle-botomist is not a medical technologist based upon the court’s observation that an individual can become a phlebotomist with only three weeks of training while a medical technologist must obtain a bachelor’s degree. The district court reached this conclusion by applying several assumptions and drawing a number of inferences from the statute’s language. These assumptions and inferences appear to have been influenced by two of our prior cases in this area, State v. Winquist, 247 N.W.2d 256 (Iowa 1976) and State v. Snyder, 203 N.W.2d 280 (Iowa 1972).

The district court implicitly found Iowa Code section 321J.11 was designed by the legislature to convey a “ranking” of the education and licensure of the four groups listed. See Iowa Code § 321J.11; see also Snyder, 203 N.W.2d at 285. Thus, physicians lead the list because of the content and extent of their education and licensure, while registered nurses end the list because less education and less stringent licensure is required to become a registered nurse. The district court also apparently considered that some or all registered nurses have achieved their designation by completing less than a bachelor’s degree level of education as compared to physicians, who ultimately achieve a graduate medical degree. See Snyder, 203 N.W.2d at 285. The district court then interpreted the medical technologist language by applying these assumptions and concluding a medical technologist’s training and licensure must be more than that of the average registered nurse while less than that of a physician. This led the district court to conclude that a medical technologist must have a bachelor’s degree to be a medical technologist. Therefore, because a person can apparently become a phlebotomist without a bachelor’s degree, phlebotomists as a group cannot be medical technologists.

While the district court’s conclusion on this issue has some logical basis, we believe our prior precedents and the record in this case actually repudiate both its underlying assumptions and ultimate conclusion. Key to the district court’s ultimate conclusion that a phlebotomist is not a medical technologist was its underlying conclusion that the legislature’s placement of medical technologists in the statute was purposeful and meant to define a medical technologist by the education or licensure one has obtained. However, we have previously considered the term medical technologist, and stated that education or licen-sure alone does not define this class of individuals:

Unlike the situation of physicians and registered nurses, the Code does not provide for state licensing of medical technologists. Nor do statutory educational or training standards exist. The test to determine whether a person holding himself out as a medical technologist is a medical technologist within the meaning of [Iowa Code section 321J.11] is whether a satisfactory showing can be made that he has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual’s health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards. The concern is with the competence of the person withdrawing the blood rather than with an occupational label he may have been awarded by a private association.

Winquist, 247 N.W.2d at 259 (citations omitted); accord Snyder, 203 N.W.2d at 284-85; see also IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001) (“ men interpreting a statute, our ultimate goal is to ascertain and give effect to the intention of the legislature.’ ” (Citation omitted.)). We believe this approach continues to properly define a medical technologist for purposes of the blood withdrawal statute, particularly in light of the fact the legislature has had nearly thirty years to alter or rewrite our interpretation of its language and has failed to do so. See Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998). Thus, the determination of whether an individual is a medical technologist as that term is used in Iowa Code section 821J.11 remains a broader inquiry that is not based on an individual’s education or licensure alone.

The district court determined a phlebo-tomist is not a medical technologist based on its assumption that phlebotomists as a class simply do not have a sufficient education to be technologists. Clearly, this conclusion and its limited basis are insufficient to properly determine whether a person is a medical technologist. Moreover,, the conclusions reached by the district court lack any basis in the record. Neither party presented evidence on the question of a phlebotomist’s education, licen-sure, training, or overall qualifications. In fact, no evidence was presented on Tinley’s competence in particular, which is the critical inquiry that must be made in this case. See Winquist, 247 N.W.2d at 259.

In the absence of record evidence with which we can consider Tinley’s qualifications, we have no choice but to reverse the district court’s order suppressing the results of Green’s blood test and remand this case for further proceedings consistent with this opinion. Ultimately, we find that phlebotomists as a group may fall within the term “medical technologist” as it is used in Iowa Code section 321J.11. Further evidence must be taken to determine whether the phlebotomist in this case— Tinley—is indeed a medical technologist as that term is used in the statute.

IV. Propriety of Implied Consent Procedures.

Green has also renewed on appeal his claim that the deputy improperly invoked implied, consent when he came to visit Green at the hospital and received Green’s waiver to have his blood withdrawn. Of course, the district court never ruled on this issue, choosing instead to sustain the motion based solely on its phlebotomy analysis. We have previously deemed the absence of a decision by a district court on an alternative ground asserted but not ruled upon by the court— here, another possible ground for suppression—as precluding our review of that ground on appeal. See Junkins v. Branstad, 421 N.W.2d 130, 135-36 (Iowa 1988); Iowar-Illinois Gas & Elec. Co. v. Iowa State Commerce Comm’n, 347 N.W.2d 423, 427 (Iowa 1984). We believe this approach is warranted in this case as well and remand this issue for further consideration by the district court.

V. Conclusion.

For each of the foregoing reasons, we reverse the district court’s order suppressing the results of Green’s blood test and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Green’s failure to raise the issue of Tinley’s qualifications to withdraw blood earlier in the proceedings may have been the result of misinformation provided by the State in notifying Green that Tinley would be called as a witness. In a Notice of Additional Witnesses filed with the district court and provided to Green, the State identified Tinley as a registered nurse. As a registered nurse, Tinley would have been included in the list of those persons permitted to withdraw blood pursuant to Iowa Code section 321J.11 (2003). Apparently, Green and the district court were first informed that Tinley was actually a phle-botomist through Tinley’s own testimony at the suppression hearing.

      . We recognize that the term "medical technologist” may have a more particularized meaning for a medical professional fully versed in medical terminology. See, e.g., Procedures in Phlebotomy 7-8 (John C. Flynn, Jr., ed.1994) (recognizing phlebotomists as part of "the field of medical technology,” but providing an organizational chart of the structure of a clinical laboratory which separates "medical technologists” from "phlebotomists”). However, we believe the broader, non-particularized description of the term that we have previously adopted better aligns with the legislature’s intent in listing those individuals qualified to withdraw blood pursuant to Iowa Code section 321J. 11. See State v. Winquist, 247 N.W.2d 256, 259 (Iowa 1976).

      . This is not to say education or licensure has no role in the analysis of whether an individual is a medical technologist. Depending on the facts of the specific case, education or licensure may be the best evidence that the individual "has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual’s health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards.” Winquist, 247 N.W.2d at 259.

      . Even assuming that the district court was correct with its apparent judicial notice that a person can become a phlebotomist with only three weeks training, there is no reason to presume the length of the training necessarily represents the content and quality of the training. Indeed, three weeks of training may be more than sufficient to fully prepare one to properly withdraw blood in accordance with the legislature's objectives. Winquist, 247 N.W.2d at 259. Of course, there is no evidence in the record establishing the length, content, or quality of the training of any phle-botomist, much less Tinley in particular.

      .Importantly, other authority exists which casts doubt on many of the district court's conclusions related to phlebotomists generally and Tinley in particular. See Stedman’s Med. Dictionary 1369 (27th ed. 2000) (A phlebo-tomist is "[a]n individual trained and skilled in phlebotomy,” the "[ijncision into or needle puncture of a vein for the purpose of drawing blood.”); Am. Soc'y for Clinical Lab. Sci., Phlebotomy, Clinical Lab. Sci., Mar./Apr,1999, at 70; Lynn B. Hoeltke, The Complete Textbook of Phlebotomy 4-6 (2d ed.2000); Procedures in Phlebotomy at 6 ("[T]he underlying goal of all [certification] programs is the same: to assure employers that the phlebo-tomists they are hiring meet a minimally acceptable standard of practice.”); see also State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 30 P.3d 649, 655 (Ct.App.2001); Thurman v. State, 172 Ga.App. 16, 321 S.E.2d 780, 781-82 (1984); Speers v. Commonwealth, 828 S.W.2d 638, 639-40 (Ky.1992); Olson v. Comm’r of Public Safety, 513 N.W.2d 491, 493 (Minn.App.1994); Nesbitt v. Director of Revenue, 982 S.W.2d 783, 786 (Mo.Ct.App.1998); State v. Bingham, 921 S.W.2d 494, 495-96 (Tex.Ct.App.1996).


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. James FOREMAN, Appellant.
    No. C5-03-160.
    Supreme Court of Minnesota.
    June 10, 2004.

      Lower Court Judge: Hon. Daniel H. Mabley.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Minneapolis, MN, for Relator/Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, Linda M. Freyer, Henne-pin County Attorney Office, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant James Foreman (Foreman) was convicted of assault in the second degree for pointing a rifle at his wife B.A.F. during an argument. The district court sentenced him to 90 months in prison. Foreman appealed his conviction and sentencing to the court of appeals. The court of appeals affirmed the conviction, but remanded for resentencing. The issues before us are whether there was sufficient evidence to convict Foreman of assault in the second degree and whether the district court erred in sentencing Foreman to a 90-month prison term. We affirm the conviction, but modify the sentence to the presumptive sentence of 60 months.

On May 22, 2002, Richfield police responded to a 911 hang-up call from the Foreman residence. B.A.F. told police that she and her husband had gotten into an argument; that Foreman had picked up a rifle, pointed it at her and threatened to kill her; and that Foreman later retrieved the rifle, pointed it at her head and stated, “You don’t believe I would kill you, do you?” The police arrested Foreman and seized a loaded rifle.

Foreman was charged with assault in the second degree, a violation of Minn. Stat. § 609.222, subd. 1 (2002). During his incarceration awaiting trial, he called his wife’s telephone number over 600 times. At the pretrial hearing, the state informed the court that B.A.F. wanted to recant the allegations she had made to the police. The court continued the hearing to allow the state to re-evaluate the evidence. B.A.F. subsequently informed the state that her initial accusation had been true but that she was confused and fearful about telling the truth.

At trial, B.A.F. and the responding police officers testified about the May 22 incident. They also testified, pursuant to Minn.Stat. § 634.20 (2002), about a prior domestic violence incident. On May 15, 2002, police had been called to the Foreman residence when Foreman had threatened B.A.F. with a knife. Police arrested Foreman and took him to jail. B.A.F. testified that Foreman called her from jail and told her to change her story and say that he had not threatened her with a knife. When she did so, and Foreman was subsequently released from jail, he returned home and threatened B.A.F. that he would kill her if she ever called the police again.

The state also introduced expert witness testimony on the battered woman syndrome. This testimony was offered by the state to assist the jury in understanding why some domestic abuse victims recant their allegations. The state’s expert testified that recantation by domestic abuse victims is common. She testified about the general psychological effects of domestic abuse, including negative self-concept, loss of identity, depression and confusion. Foreman objected to the introduction and scope of this evidence.

Foreman chose not to take the stand and offered no witnesses. The jury returned a verdict of guilty. The district court sentenced Foreman to 90 months in prison. On appeal, Foreman argued that the evidence to convict him was insufficient because B.A.F.’s testimony was not credible and there was no corroborating testimony or physical evidence. He also argued that the district court had abused its discretion when it imposed a 90-month prison sentence because it exceeded the statutory maximum of 84 months and the upward departure from the presumptive sentence of 60 months was not supported by sufficient aggravating circumstances.

The court of appeals concluded that the evidence was sufficient to support the jury verdict, but that the district court had abused its discretion in sentencing because the 90-month term exceeded the statutory maximum of 84 months. The court determined that the district court had intended to depart, but had failed to identify sufficient grounds for departure. The court then examined the record and determined that there were sufficient grounds to depart from the presumptive sentence. Deferring to the district court’s familiarity with the record, the court remanded for resentencing. State v. Foreman, No. C5-03-160, 2003 WL 22333064, at *4 (Minn.App. Oct.14, 2003) (unpublished decision). We granted Foreman’s petition for further review.

I.

In reviewing a claim of insufficiency of the evidence, we are “limited to ascertaining whether, based on the evidence presented at trial, a jury could have reasonably concluded that the accused is guilty of the offense.” State v. McBride, 666 N.W.2d 351, 364 (Minn.2003). We review the evidence in a light most favorable to the state and must assume that the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. Id.

Although Foreman recognizes this court’s normal standard of review on the sufficiency of the evidence, he argues that because B.A.F. recanted, a heightened standard of review applies and corroboration of her testimony is required. Foreman rests his argument on our decision in State v. Ani, a criminal sexual conduct case where we noted that the absence of corroboration of the victim’s testimony might, in a given case, raise doubt about the sufficiency of the evidence. 257 N.W.2d 699, 700 (Minn.1977). But Ani clearly states that corroboration is not mandated by statute or the constitution. Id. In sustaining the conviction in Ani, we held that the positive and uncontradicted testimony of a victim may be sufficient by itself to support a conviction. Id.

We have stated that “a conviction can rest on the uncorroborated testimony of a single credible witness.” State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969). There, we affirmed a conviction based on the testimony of a single witness even though that witness had said, outside of court, that he would testify against the defendant “because he didn’t like him anyway.” Id. We concluded that his testimony was sufficient to identify the defendant and that as long as the evidence was sufficient to reasonably support the jury’s finding, the credibility of a witness was for the jury to determine. Id. Similarly, in State v. Reichenberger, we affirmed a conviction of having sexual intercourse with a minor, even though the victim made conflicting statements at various times prior to trial, because at trial she testified positively that intercourse had occurred. 289 Minn. 75, 78, 182 N.W.2d 692, 694 (1970). We held that the jury was apprised of the previous inconsistent statements and “the task of weighing credibility was for the jury, not this court.” Id. at 79, 182 N.W.2d at 695.

The cases relied upon by Foreman are distinguishable because each involved additional reasons to question the victim’s credibility. In State v. Huss, we determined that the testimony of the alleged victim of child abuse was insufficient because there was expert testimony that the victim had been exposed by the state to highly suggestive material and her testimony was not sufficiently credible. 506 N.W.2d 290, 292-93 (Minn.1993). In State v. Langteau, we held that the uncorroborated testimony of the victim was insufficient to find the defendant guilty of aggravated robbery because the actions by the victim were questionable or unexplained. 268 N.W.2d 76, 77 (Minn.1978). Finally, in State v. Gluff, we held that uncorroborated identification of the defendant did not have probative value because the witness had seen the perpetrator for only a short time and there had been errors in the lineup process. 285 Minn. 148, 151, 172 N.W.2d 63, 65 (1969). Here, there were no other reasons to question B.A.F.’s credibility and her testimony at trial was not contradicted.

As a part of his sufficiency of the evidence argument, Foreman argues that the expert witness testimony on the battered woman syndrome and the testimony about the May 15 incident were improperly admitted. Neither of these evidentiary issues was presented in the court of appeals. In addition, Foreman did not object at trial to the testimony about the May 15 incident. We do not review issues not raised at the district court or court of appeals unless the interests of justice require their consideration and addressing them would not work an unfair surprise on a party. See Johnson v. State, 673 N.W.2d 144, 147-48 (Minn.2004). We are not persuaded that the interests of justice require consideration of these evidentiary issues and we decline to review them.

We conclude that B.A.F.’s positive and uncontradicted testimony provided sufficient evidence to support the conviction.

II.

Foreman argues that the district court abused its discretion by departing from the presumptive sentence without providing specific reasons for the departure. In addition, Foreman argues that the 90-month sentence exceeds the statutory maximum and must at least be modified to 84 months. The state acknowledges that the 90-month sentence is not authorized by law but argues that the proper remedy is to remand to the district court for resentencing. The court of appeals concluded that the 90-month sentence was improper but held that, “[bjecause the district court is in the best position to assess the justification for departure,” the resentencing should be remanded to the district court. Foreman, 2003 WL 22333064, at *4.

The maximum sentence for second-degree assault is 84 months. Minn. Stat. § 609.222, subd. 1 (2002). The presumptive sentence is 60 months. See Minn.Stat. § 609.11, subd. 5(a) (2002); Minnesota Sentencing Guidelines II.E. According to the Minnesota Sentencing Guidelines, the judge must find substantial and compelling circumstances to depart from the presumptive sentence. See Minnesota Sentencing Guidelines II.D. Additionally, “[wjhen departing from the presumptive sentence,” a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence. Id. Under Minn. R.Crim. P. 27.03, the district court must state on the record reasons for the departure. Minn. R.Crim. P. 27.03, subd. 4(C). In addition, the rules require the court to fill out a departure report. Id.

Here, the district court did not clearly identify the presumptive sentence, state an intent to depart or state reasons for the departure. During sentencing, the court analyzed State v. Mallory, 329 N.W.2d 60 (Minn.1983), which involved an earlier version of the guidelines that provided: “When an offender has been convicted of an offense with a mandatory minimum sentence of five years, the presumptive duration of the prison sentence should be 90 months.” Minnesota Sentencing Guidelines II.E. (1983). Prior to Foreman’s sentence, this provision in the guidelines was amended to read: “When an offender has been convicted of an offense with a mandatory minimum sentence of one year and one day or more, the presumptive disposition is commitment to the Commissioner of Corrections. The presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute.” Minnesota Sentencing Guidelines II.E. (2004).

We conclude that the district court mistakenly believed that the Mallory opinion reflected the current guideline and provided for a presumptive sentence of 90 months. There is no evidence that the court intended to depart from the presumptive sentence. The state did not move for a departure. The presentence investigation report did not recommend one. The court did not provide presen-tence notice of an intent to depart. The court did not state at the sentencing that it was departing or describe reasons for a departure. The court did not refer to the 90-month sentence as a departure, nor did it file a departure report.

In State v. Thieman, we considered the appropriate appellate remedy when a district court intends to impose the presumptive sentence but is mistaken about what the presumptive sentence is. 439 N.W.2d 1, 7 (Minn.1989). There, the sentence was based on an erroneous application of the sentencing guidelines, applying a post-August 1,1987, version to a July 1987 offense. We concluded:

At the time of sentencing, both attorneys and the trial judge assumed that the presumptive sentence for attempted second-degree murder would be given. All three were under the impression that the presumptive sentence was 108 months when, in fact, it was 60 months. It is impossible to predict what the court would have done had it known then that the presumptive guideline sentence was 60 months. We do know that the court intended to issue the presumptive sentence, and to allow it now to amend retroactively its reasons and depart from the guidelines is contrary to Williams.

Id. (citing Williams v. State, 361 N.W.2d 840, 844 (Minn.1985)). We reduced the sentence from 108 months to 60 months.

Because the record reveals that the district court relied on an erroneous sentencing guideline in determining what Foreman’s presumptive sentence would be, and did not state an intent to depart from the presumptive sentence, the proper remedy is to modify Foreman’s sentence to the presumptive sentence of 60 months. Accordingly, we affirm Foreman’s conviction, but modify his sentence to the 60-month presumptive sentence for assault in the second degree.

Affirmed as modified.