author: KERN, Circuit Judge.

text:
    2003 SD 82
    Kyle LEWIS, Claimant and Appellee, v. South Dakota STATE DEPARTMENT OF TRANSPORTATION and South Dakota Bureau of Personnel, Employer and Appellants.
    Nos. 22562, 22581.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2003.
    Decided July 16, 2003.

      John Stanton Dorsey of Whiting, Hagg & Hagg, Rapid City, South Dakota, Attorneys for claimant and appellee.
    Timothy M. Engel of May, Adam, Gerdes & Thompson, South Dakota, Attorneys for employer Pierre and appellants.
   KERN, Circuit Judge.

[¶ 1.] South Dakota Department of Transportation (DOT) and South Dakota Bureau of Personnel (BOP) (collectively referred to as Employer) appeal a decision of the circuit court affirming the Department of Labor’s (DOL) award of attorney fees to Kyle Lewis as a consequence of DOT’s refusal to compensate him for medical costs incurred after <an injury.

[¶ 2.] Employer also challenges the circuit court’s award of attorney fees to Lewis for the appeal to circuit court. We affirm.

BACKGROUND

[¶ 3.] Lewis is a senior highway maintenance worker for DOT. On July 31, 1998 he was operating a road sweeping device attached to his truck. The device was operated by means of a metal remote control box which was located inside the truck’s cab and connected to the sweeper by a power cord that extended through the window. As Lewis and his co-worker drove along, something caught the cord from outside the truck and yanked the metal box out of the window, striking Lewis in the face. He suffered a two-inch laceration on his chin which partly penetrated through to his mouth and required eighteen stitches to repair. The blow also damaged veneers on his four front teeth which covered dark stains that had resulted from medications he took during childhood. One of his teeth was knocked from his jaw, embedded in the back of his mouth and had to be reattached.

[¶ 4.] Lewis was referred to a dentist, Dr. Loftus, who recommended replacement of all four veneers. Dr. Loftus testified by deposition that the chips on all the veneers were immediately noticeable to him when he viewed Lewis’ face. He also opined that the chips could allow food to enter the area between the remaining veneer and the teeth and promote tooth decay and deterioration. By letter dated November 10, 1998, Dr. Loftus contacted Lynn Job, BOP administrator, to inquire about the compensability for replacement of the veneers. As administrator, it was Job’s responsibility to serve as adjuster for Lewis’ claim.

[¶ 5.] Job did not seek any additional information from Dr. Loftus initially. Instead, on December 7, 1998, she e-mailed James Marsh, Director of the Division of Labor and Management for DOL, the supervisor of DOL’s hearing examiners. The following exchange occurred:

Question from Job: I have a situation where an employee was hit in the mouth and required root canal treatment on two teeth. We paid for the root canal treatment however, prior to the accident he had veneers put on his teeth. I have been informed that veneers are used mainly for cosmetic purposes. He claims that two veneers not on the teeth requiring the root canal treatment were chipped by this accident.
Because they were cosmetic, are they considered a necessary medical expense under work comp?? Are we required to pay to replace the chipped veneers?
Answer from Marsh: Hmm. I guess it depends on whether a veneer can be considered a “medical supply,” or a “denture,” or if the absence of the veneer can be considered “disfiguring” so that it must be replaced for the employee to look to the world like he did before he got smacked.... My guess, anyway, is that he only gets the veneer replaced if you can see the chips when he smiles. Seriously.

[¶ 6.] Following this exchange, Job contacted Dr. Loftus by phone. She testified that he answered “no” when asked whether the chips on the two “outside” teeth, referred to as #7 and # 10, would be visible when Lewis smiled. At his deposition, Dr. Loftus could not recall having said that the chips would not be visible.

[¶ 7.] Job denied the claim for the veneer replacement. In her December 10, 1998 letter to Lewis communicating the denial, she indicated that the veneers were cosmetic and they were not injured. At the administrative hearing, she indicated that she based this decision on Marsh’s email and her understanding that the veneers would not be visible when Lewis smiled. Job sought no further medical opinions before issuing the denial. Additionally, she did not conduct further investigation into the visibility of the chips.

[¶ 8.] Dr. Ruth McLaughlin, who first treated Lewis’ lacerations, referred him to Dr. Richard Carver, a plastic surgeon. Her letter of referral indicated that:

his residual healing leaves him with some swelling on his face above the laceration and some thickening of particularly the distal part of his laceration. I think there is probably some lymphatic obstruction from the injury giving him some puffiness. In my opinion, it would be reasonable to have this secondarily repaired.

On February 4, 1999, Dr. Carver sent a letter to BOP regarding Lewis. That letter stated: “[T]he scar is still visible, due to the underlying muscle is bulging, making the scar more visible. I would strongly recommend this scar revision and defat-ting of the scar to the underlying tissue and muscle.”

[¶ 9.] Job received and read Dr. Carver’s letter on February 8,1999. The next day she e-mailed Marsh again and the following exchange occurred:

Question from Job: What is our responsibility relating to plastic surgery? We had someone get stitches on his face which left a scar? Is plastic surgery to remove a scar considered a necessary medical expense?
Answer from Marsh: Holy cow, you’re full of questions today! Our rule has been that the surgery is necessary if there is some connection with one’s ability to earn money. Model, slam dunk. Salesman, strong argument. Dock worker, get real.

The following day she denied Lewis’ request for compensation. She made no attempt to investigate further, obtain an independent medical examination, or view photos of the scar. Her denial was solely based on the e-mail from Marsh.

[¶ 10.] On March 8, 1999 Lewis petitioned DOL for compensation for damage to his teeth and surgery to repair the facial scar and also made a claim for permanent disfigurement pursuant to SDCL 62-4-6(24). He requested attorney fees based on allegations that the denial on the part of employer’s administrator was without medical foundation, unreasonable, vexatious and without any support in law, and in “bad faith,” pursuant to SDCL 58-12-3. On June 1, 2000, after a full hearing on the merits, the Administrative Law Judge (ALJ) found the claims to be compensable. The ALJ maintained jurisdiction over the issue of whether any permanent partial disability benefits might be owed to Lewis for disfigurement following the scar revision surgery.

[¶ 11.] Lewis submitted an affidavit for attorney fees on October 6, 2000. Employer moved for summary judgment on the issue of attorney fees, contending that they were not justified by the facts, that the State was immune from suit for attorney fees, and that the request for fees was untimely. By order dated January 16, 2001, the ALJ denied summary judgment.

[¶ 12.] On June 15, 2001, a hearing was held on the issue of whether attorney fees should be awarded under SDCL 58-12-3. The ALJ issued a decision on November 21, 2001, determining that the denial of Lewis’ benefits was unreasonable. Findings of fact, conclusions of law and an order were entered to that effect on December 12, 2001. The ALJ specifically determined that State was a self insurer for the purposes of workers’ compensation claims and that SDCL 58-12-3 authorizes an award of attorney fees against State. After additional briefing, the ALJ entered an amended order on February 7, 2002, finding that Lewis was entitled to an award of reasonable attorney fees and costs in the amount of $18,219.15.

[¶ 13.] Employer appealed the intermediate order of January 16, 2001 denying summary judgment, the order of December 12, 2001 and the amended order of February 7, 2002. The circuit court consolidated the appeals, affirmed the ALJ on all issues, and awarded Lewis an additional $5,888.93 for attorney’s fees. DOT appeals each of these decisions.

ISSUE ONE

[¶ 14.] Whether State was a self insured employer subject to an award of attorney fees under SDCL 58-12-3.

[¶ 15.] Employer contends the State is not a self insured employer as that term is defined and therefore not subject to an award of attorney fees. SDCL 58-12-3 provides:

In all actions or proceedings hereafter commenced against any employer who is self-insured, or insurance company, including any reciprocal or interinsurance exchange, on any policy or certificate of any type or kind of insurance, if it appears from the evidence that such company or exchange has refused to pay the full amount of such loss, and that such refusal is vexatious or without reasonable cause, the Department of Labor, the trial court and the appellate court, shall, if judgment or an award is rendered for plaintiff, allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs, provided, however, that when a tender is made by such insurance company, exchange or self-insurer before the commencement of the action or proceeding in which judgment or an award is rendered and the amount recovered is not in excess of such tender, no such costs shall be allowed. The allowance of attorney fees hereunder shall not be construed to bar any other remedy, whether in tort or contract, that an insured may have against the same insurance company or self-insurer arising out of its refusal to pay such loss.

[¶ 16.] By its plain language, SDCL 58-12-3 applies to all actions or proceedings commenced against any employer who is self insured. SDCL 62-1-2 provides that “the term ‘employer’ includes the state” as used in SDCL Title 62. In turn, SDCL 62-5-5 explicitly allows employers to self-insure if they meet the requirements of SDCL Title 58. In addition, the legislature has authorized the State to provide for self-insurance pursuant to SDCL ch 3-12A. In short, the plain language of SDCL 58-12-3, considered in pari materia with the other pertinent statutes, indicates that the State may elect to be a self-insured employer.

[¶ 17.] Employer asserts that SDCL 62-5-6 exempts the State from the self insurance scheme and consequently from attorney fees awarded pursuant to SDCL 58-12-3. SDCL 62-5-6 provides:

This state or any municipality or other political subdivision of the state need not furnish any insurance or security as provided by §§ 62-5-1 to 62-5-5, inclusive, or §§ 62-5-10 to 62-5-12, inclusive, but may do so if it desires.

[¶ 18.] Employer maintains that legislative history clarifies this exemption: it asserts that prior to 1996 the assessment of attorney fees was explicitly confined to a class of self insurers from which the state was excluded. At that time, in authorizing awards of attorney fees against self insurers, SDCL 58-12-3 specifically referenced SDCL 62-5^4 which authorized self insurance. Employer argues that SDCL 62-5-6 exempted the State from the operation of SDCL 62-5-4. Subsequent statutory amendments have repealed both SDCL 62-5-4, and the reference to that statute in SDCL 58-12-3, while leaving intact the option of self-insurance as a means of securing workers’ compensation obligations. However, Employer contends that the purported earlier and explicit exemption of the State from self insurance provisions presumptively still exists.

[¶ 19.] Employer’s argument grossly misconstrues the nature of the exemption contained in SDCL 62-5-6. That statute, in its prior and present forms, merely provides that State and its subdivisions are not limited to the alternatives provided in SDCL ch 62-5 for securing their obligations to provide workers’ compensation. Private employers, on the other hand, must choose among those options pursuant to that chapter. In other words, while self insurance is optional for both State and private employees, State is allowed more choices for securing its requirements to pay compensation. Therefore, State is exempted from the limitation in SDCL ch 62-5 to those specific alternatives. Yet, the greater range of options allowed for State or its subdivisions does not somehow exempt them from consideration as self insurers for purposes of SDCL 58-12-3 once they have chosen that alternative for meeting compensation obligations. If either State or private employers opt to self insure in order to provide workers’ compensation they are subject to the provisions of SDCL 58-12-3.

ISSUE TWO

[¶ 20.] Whether Employer was protected by sovereign immunity.

[¶ 21.] In light of the fact that the legislature authorized State to become a self-insurer, subject to attorney fees, we hold that State is not protected by sovereign immunity from an award of such fees under SDCL 58-12-3. Only an express statutory waiver removes sovereign immunity. Arcon Construction, Inc. v. South Dakota Cement Plant, 349 N.W.2d 407, 410 (S.D.1984). In Arcon, this Court found that the South Dakota Legislature had expressly waived immunity for the state cement plant by enacting the Unified Commercial Code (UCC). Id. at 411. The UCC as then enacted applied to “organizations,” defined as “government or governmental subdivisions or agencies.” Id. at 410. Furthermore, the UCC included cement as one of the “goods” to which the act applied. Id. Finally, the UCC provided a buyer specific rights against a seller. Id. at 411. Consequently, plaintiff was entitled to maintain an action against the cement plant for breach of a sales contract.

[¶ 22.] Similarly, and as previously mentioned, South Dakota’s worker compensation act and SDCL 62-1-2 include the State within the definition of “employer.” SDCL 62-5-5 explicitly allows employers to self-insure if they meet the requirements of SDCL Title 58. Specifically, SDCL 58-12-3 allows attorney fees to be assessed against “any employer” who is self insured. These statutes waive immunity for the State once it has elected to provide insurance.

ISSUE THREE

[¶ 23.] Whether Lewis’ claim for attorney fees was untimely.

[¶ 24.] Employer asserts that SDCL 58-12-3.1 required the petitioner to request a hearing on the issue of attorney fees within ten days after the ALJ issued its order awarding attorney fees to Lewis. Failure to do so, according to Employer, waived the claim despite the fact Lewis included a request for attorney fees in his original petition. In other words, Employer argues that the request for a hearing can only be made within a ten day post-award window. This argument rests partly on the fact that the statute in question requires a separate hearing, therefore, Employer reasons there must be a separate request from the initial proceeding. Additionally, Employer argues that if a request for attorney fees in the petition is sufficient, in many instances nothing would limit the time within which the claimant could present the matter for hearing. Finally, Employer asserts that absent enforcement of the ten day time limitation on such requests the statute would be superfluous. We disagree.

[¶ 25.] Nothing in the plain language of SDCL 58-12-3.1 supports this argument. The necessary “request” for a hearing is not described in such a manner that it requires a “post-award” request accompanied by an explicit and simultaneous demand for a separate hearing. The language of SDCL 58-12-3.1 only mandates a separate hearing before the question of attorney fees may be decided. The statute thus effectively makes any request for attorney fees in these proceedings equivalent to a request for such hearing, even a request contained in the initial petition on the underlying claim against the insurer. The statute does not require that the hearing on attorney fees actually be held within the statutory ten day period following the award. Furthermore, there is no requirement of a submission of a detailed or itemized list of fees within that period. Compare SDCL 15-6-54(d)(providing that an application for costs and disbursements shall be made within thirty days of the entry of a judgment, including a detailed statement of the costs and disbursements claimed and verified by affidavit). In other words, the very general requirement concerning the request for a hearing in SDCL 58-12-3.1 can be met by a request for attorney fees in the petition.

[¶ 26.] A pre-award request for attorney fees suffices to provide notification to the Employer in these proceedings. This is illustrated in this instance by the fact that just days prior to the ALJ’s decision, favorable to Lewis, the parties entered a stipulation which indicated that Employer waived its right to appeal the decision and also stated: “Nothing in this stipulation is intended to act as a waiver of the right of Employer and Insurer to contest any claim that might be made by [Lewis] for costs and attorney fees.” Clearly, Employer cannot claim that it was surprised by the request for attorney’s fees.

[¶ 27.] Moreover, we are not convinced by Employer’s argument that allowing pre-award requests for attorney fees under this statute would allow an unlimited time period within which a claimant could ultimately submit the question to the hearing examiner. Once attorney fees have been requested, the statute leaves the timing of the separate hearing to the discretion of the administrative law judge or the court.

[¶ 28.] In the absence of explicit time barriers, that discretion should be exercised with a goal toward not prejudicing or surprising the affected party and not allowing unreasonably tardy requests. See, e.g., White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454 102 S.Ct. 1162, 1167-68, 71 L.Ed.2d 325 (1982)(construing federal statutes that did not contain explicit time limits on requests for costs and attorney fees). In this instance, Employer makes no claim that it was prejudiced or surprised and the record contains no evidence of such. The plain language of SDCL 58-12-3.1, which requires a request for attorney fees within ten days of entry of a favorable judgment or award, is broad enough to encompass a request made in the initial petition in the underlying matter. For these reasons, the request for fees was not time barred.

ISSUE FOUR

[¶ 29.] Whether the denial of benefits was without reasonable cause.

[¶ 30.] The ALJ found that BOP’s refusal to pay for the veneers or scar surgery was without reasonable cause. SDCL 58-12-3 authorizes fees when the insurer’s refusal to pay is determined to be vexatious or without reasonable cause. This determination constitutes a finding of fact. See Sawyer v. Farm, Bureau Mutual Insurance, 2000 SD 144, ¶ 29, 619 N.W.2d 644, 652. As such, it is subject to review under the “clearly erroneous” standard. Under this standard,

[t]he question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding. In other words, even if there is evidence in the record which tends to contradict Department’s factual determinations, so long as there is some “substantial evidence” in the record which supports Department’s determination, this court will affirm.

Howie v. Pennington County, 1997 SD 45, ¶ 6, 563 N.W.2d 116, 117.

[¶ 31.] After a careful review of the record we are not convinced a mistake has been committed. The record supports the ALJ’s finding that there was no reasonable basis on which to deny Lewis’ claims. First, the claim administrator offered inconsistent justifications for her decision denying compensation for the veneers. Her letter accompanying the denial indicated that the veneers were “not injured” and were for “cosmetic reasons.” Yet, if the veneers were not compensable because they were cosmetic, then whether they were “injured” would be immaterial. Furthermore, the director’s reasoning, on which the administrator purportedly relied, was not that cosmetic procedures were not compensable, but that the veneers were only compensable if the chip was visible when the subject smiled. The fact that these three purported grounds for the denial were inherently conflicting undermined the weight of each of them.

[¶ 32.] Even ignoring those inconsistencies and independently examining the administrator’s proffered grounds, the evidence indicates that those grounds lacked reasonable support. The assertion in the letter that the veneers were not injured is directly contradicted by Dr. Loftus’ opinion that all four of the veneers were chipped in spots. The ALJ found that the administrator had not sought, nor did she offer at the hearing, a second medical opinion to contradict Dr. Loftus.

[¶ 33.] To the extent that the administrator relied on the simple fact that veneers are cosmetic, her reasoning ignores SDCL 62-4-6(24) which provides compensation for “permanent disfigurement.” Likewise, to the extent that the administrator’s opinion may have depended on an assessment that the veneers in question were not visible, that conclusion is undercut by evidence to the contrary. While the administrator testified that Dr. Loftus had answered “no” when asked whether the veneers in question would be visible when Lewis smiled, Dr. Loftus could not remember having told her that the damage would not be noticeable. Additionally, at his deposition he testified that he had noticed the chips “right away” and that “[t]hey are his front four teeth, so I would imagine they would be visible to other people.” Presumably, Dr. Loftus would not have recommended replacement were the chips not visible. Dr. Loftus’ opinion that the veneers should be replaced was also supported by his concern that food and bacteria could enter the chipped areas, thus promoting tooth decay and cavities. This is further support for the reasonableness and medical necessity of replacing the veneers. Finally, the administrator did not dispute that Dr. Loftus had recommended that all four veneers be replaced. Given the medical expert’s determination, Employer had the burden to show that the recommended treatment was not “necessary, suitable or proper.” See Hanson v. Penrod Construction Co., 425 N.W.2d 396, 899 (S.D.1988).

[¶ 34.] Similarly, Department’s reasoning for denying compensation for the cost of scar removal was not only internally inconsistent, but it also disregarded the statutory coverage for permanent disfigurement and ignored the non-cosmetic aspect of the scars. Having earlier indicated that veneer replacement could be compen-sable if visible, the administrator, relying solely on the director’s e-mail response, determined that removal of a scar was only compensable if it adversely affected his ability to perform his work. By adding a new condition to recovery for injuries of a “cosmetic” nature, this denial of compensation for scar removal ignores the plain language of SDCL 62-4-6(24). That subsection provides compensation “for permanent disfigurement, or permanent disability resulting from injury to any part of the body not hereinbefore listed.” Disfigurement and disability are listed in the disjunctive. Recovery for the disfigurement does not depend on whether it creates a disability. The administrator admitted her awareness of this statute but she chose to disregard it.

[¶ 35.] The record supports the need to remove the scar and indicates the potential health implications for failure to remove it. Two doctors stated that it would be reasonable to repair the scar, which had been created by a two inch laceration requiring some eighteen stitches. In fact, one of the doctors indicated that the injury had caused some lymph obstruction, with resultant swelling. The administrator made no effort to independently investigate the size or appearance of the scar either by meeting with Lewis or reviewing photographs of the scar. Ignoring the doctors’ assessments, and lacking any independent medical opinions to the contrary, she denied compensation on the basis that disfigurement must amount to vocational disability, a position not supported by SDCL 62-4-6(24).

[¶ 36.] The findings concerning the unreasonableness of the denial of compensation for scar removal surgery are supported by the weight of the record. Consequently, the ALJ’s findings were not clearly erroneous.

ISSUE FIVE

[¶ 37.] Whether the amount of the award of attorney fees under SDCL 58-12-3 should be limited as a matter of law in accord with SDCL 62-7-36.

[¶ 38.] Having held that attorney fees are awardable we decline to adopt Employer’s position that SDCL 62-7-36 operates to limit the amount of such fees as a matter of law. That statute provides:

Except as otherwise provided, fees for legal services under this Title shall be subject to approval of the department.
Attorneys’ fees may not exceed the percentage of the amount of compensation benefits secured as a result of the attorney’s involvement as follows:
(1) Twenty-five percent of the disputed amount arrived at by settlement of the parties;
(2) Thirty percent of the disputed amount awarded by the department of labor after hearing or through appeal to circuit court;
(3) Thirty-five percent of the disputed amount awarded if an appeal is successful to the Supreme Court.
Attorneys’ fees and costs may be paid in a lump sum on the present value of the settlement or adjudicated amount, (emphasis added).

[¶ 39.] Employer argues that even though attorney fees were awarded pursuant to SDCL 58-12-3, the underlying claim upon which the fees were ultimately based was a workers’ compensation matter and therefore SDCL 62-7-36 applies. However, this argument ignores the fact that the phrase “fees for legal services” contained in SDCL 62-7-36 is modified by “under this Title.” The fees herein were not awarded “under” that Title.

[¶ 40.] If the legislature had intended for attorneys fees awarded pursuant to SDCL 58-12-3 to be limited by SDCL 62-7-36 it certainly could have cross referenced this statute. See SDCL 62-5-5 (indicating that DOL can exclude a self insuring employer’s certificate of exemption from the requirements of SDCL 62-5-2 and 62-5-3 if the employer fails to meet the requirements of SDCL ch 58). Yet, SDCL 62-7-36 contains no mention of SDCL ch 58.

[¶ 41.] This holding is consistent with the legislature framework in this area. This Court, when construing SDCL 58-12-3 before the statutory amendments that brought self insuring employers within its coverage, noted that the “obvious objective of SDCL 58-12-3 is to discourage contesting insurance coverage and to reimburse an insured for any reasonable attorney’s fees necessarily incurred in defending or enforcing a valid insurance contract right.” All Nation Insurance Co. v. Brown, 344 N.W.2d 493, 494 (S.D.1984). See also Ofstad v. South Dakota Dept. of Transportation, 387 N.W.2d 539, 543 (S.D.1986)(Sabers, J., dissenting)(“courts have recognized that the purpose of statutes imposing attorney fees on insurance companies who fail to pay claims is to reimburse claimants who might otherwise conclude it is not economically feasible to bring suit on a claim.”). Allowing larger attorney fee awards serves the purpose of deterring vexatious refusals by employers for the compensable claims of their employees.

[¶ 42.] Likewise, this interpretation is consistent with the “long-standing public policy that workers’ compensation statutes be liberally construed in favor of injured employees.” Wilcox v. City of Winner, 446 N.W.2d 772, 775 (S.D.1989). For these reasons, we hold that attorney fee awards under SDCL 58-12-3 are not limited by SDCL 62-7-36.

ISSUE SIX

[¶ 43.] Whether the attorney fees awarded by the ALJ were reasonable.

[¶ 44.] Employer also challenges the amount of attorney fees awarded by the ALJ. First, we address the proper standard of review for the agency’s determination. We consistently have reviewed trial court attorney fee awards under the abuse of discretion standard and specifically have applied that standard to review the reasonableness of a circuit court’s award of attorney fees pursuant to SDCL 58-12-3. Biegler v. American Family Mutual Insurance Co., 2001 SD 13, ¶ 60, 621 N.W.2d 592, 607. DOL’s authority to award attorney fees arises from the same statute. Accordingly, we extend that standard to the ALJ’s determination in this matter. The phrase abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Id.

[¶ 45.] In support of a reduction, Employer argues that attorneys would not customarily have spent the amount requested ($18,219.50) in the prosecution of the relatively small claim amount. Employer also asserts that the issues involved were not complex enough to warrant the amount time spent on this claim. We reject Employer’s arguments as more than ample reasoning and evidence supports the fee award.

[¶ 46.] First, this was not a routine case. It invoked constitutional issues and questions of first impression .regarding the interpretation of the statutes governing attorney fee awards. Moreover, contradicting positions were vigorously advocated by both parties. The amount of compensation generally expected by an attorney is not decisive on this issue. This Court has noted that “a reasonable fee in certain instances may be in excess of what a one-third contingency fee would produce or it may be less. It is the reasonableness of the fee, and not the arrangements the attorney and his client may have agreed upon, which is controlling,” City of Souix Falls v. Kelley, 513 N.W.2d 97, 112 (SD 1994). Consistent with the paramount importance of the overall reasonableness of such fees, “transcending principles” may warrant the payment of attorney fees that exceed the amount in dispute in the underlying claim. See, e.g. Simmons v. Government Employees Insurance Co., 59 A.D.2d 468, 400 N.Y.S.2d 99 (2d Dept 1977) (when auto collision insurer, without reason and contrary to the thrust of no-fault insurance act, refused to promptly pay $105 claim and then contested the claim at every turn, $2149 attorney fee award was reasonable). This is such a case.

[¶ 47.] The BOP baselessly refused to compensate a state employee who had little leverage to request payment for disfigurements he suffered while serving his employer. While Lewis undoubtedly would have preferred to altogether avoid legal proceedings in favor of prompt compensation, Employer’s aggressive defense of its actions necessitated the expenditure of legal resources.

[¶ 48.] Limiting the award of attorney fees in this instance by comparing it to the amount of the underlying claim to the exclusion of the other factors would partly frustrate the purpose of SDCL 58-12-3. It would encourage workers’ compensation insurers to vigorously contest all smaller claims in the hopes of generally discouraging pursuit of such claims based on the threat of economic infeasibility. See Ofstad, 387 N.W.2d at 543 (Sabers, J., dissent-ingXcourts recognize that purpose of attorney fees is to make pursuit of claims against insurers economically feasible). Consequently, it would be unreasonable to limit attorney fees by exclusively comparing it to the amount of the underlying claim.

[¶ 49.] On these facts, we find the individual fee entries to be within the ALJ’s discretion, and affirm the full amount of her order awarding attorney fees.

ISSUE SEVEN

[¶ 50.] Whether the attorney fees awarded by the circuit court were reasonable.

[¶ 51.] A circuit court’s award of attorney fees is reviewed for abuse of discretion. Biegler v. American Family Mutual Insurance Co., 2001 SD 13, ¶ 60, 621 N.W.2d 592, 607. An abuse of discretion indicates discretion not justified by, and clearly against, reason and evidence. Id.

[¶ 52.] The circuit court also acted within its discretion to award reasonable attorney fees. Employer primarily argues that a portion of the hours awarded by the circuit court cannot be directly attributed to prosecution of the appeal to circuit court. Indeed, it appears from attorney Dorsey’s affidavit that a portion of the requested expenses represents activity aimed at completion of the attorney fees issues before the ALJ and not the circuit court. The circuit court had awarded attorney fees to Lewis up to and including December 7, 2001, but thereafter Dorsey performed work on that issue for presentation to the ALJ. Consequently, Dorsey asked the circuit court for fees representing work done after December 7, 2001, in addition to the fees representing matters filed in circuit court.

[¶ 53.] We do not find an abuse of discretion by the circuit court. SDCL 58-12-3 does not limit the circuit court’s authority to award fees for work directly related to the appeal to circuit court. The award of attorney fees on these facts is reasonable. Consequently, we affirm the circuit court’s award.

APPELLATE ATTORNEY FEES

[¶ 54.] Lewis seeks fees in the amount of $1,802 for his appellate attorney fees in this matter. SDCL 58-12-3 grants us authority to award such fees. Because we have found Employer’s contentions meritless, fees are warranted. We have reviewed Lewis’ affidavit and find the request reasonable. Therefore, we grant Lewis $1,802 for the expense of the appeal to this Court.

[¶ 55.] Affirmed.

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

[¶ 57.] KERN, Circuit Judge, for ZINTER, Justice, disqualified.

      . Those alternatives include obtaining insur-anee from a stock corporation or mutual employers liability association (SDCL 62-5-2), or insuring payment "in some association organized for the exchange of reciprocal or interinsurance contracts with each other by individuals, partnerships, or corporations of this state for the purpose of providing indemnity among themselves.” SDCL 62-5-3.

      . SDCL 58-12-3.1 provides:
      The determination of entitlement to an allowance of attorney fees as costs and the amount thereof under § 58-12-3 shall be
      made by the court or the Department of Labor at a separate hearing of record subsequent to the entry of a judgment or award in favor of the person making claim against the insurance company, and, if an allowance is made, the amount thereof shall be inserted in or added to the judgment or award. Such a hearing shall be afforded upon the request of the claimant made within ten days after entry of the judgment or award.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2003 SD 83
    STATE of South Dakota, Plaintiff and Appellee, v. Dale GUTHMILLER, Defendant and Appellant.
    No. 22341.
    Supreme Court of South Dakota.
    Argued Feb. 11, 2003.
    Decided July 16, 2003.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Larry Mamula, Dakota Plains Legal Service, Rapid City, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] A Pennington County jury convicted Dale Guthmiller (Guthmiller) of criminal pedophilia. He was also found to be a habitual offender. The trial court sentenced him to life in prison without parole. Guthmiller appeals his conviction and sentence. We affirm.

FACTS

[¶ 2.] Guthmiller, also known as Wrench, owned a motorcycle shop called ‘Wrench’s Repair.” Guthmiller hired acquaintance M.B. to organize the paperwork for the business. On July 9, 2001, M.B. arrived for her first day of work at approximately 8:30 a.m. She brought her four-year-old daughter R.B. to the shop with her. R.B. liked to play with Guthmil-ler’s cats while her mother worked. Shortly after arriving, Guthmiller and M.B. smoked drugs together.

[¶ 3.] Later that afternoon, between 3:00 p.m. and 4:00 p.m., Don Rice (Rice) came to the shop looking for Guthmiller. M.B. directed him to the back of the shop where she thought Guthmiller was working. Returning from the back of the shop, Rice indicated to M.B. that he had not found Guthmiller. M.B. realized that R.B. was also missing. A few minutes later Guthmiller and R.B. appeared. Guthmil-ler explained that he had taken R.B. to the bathroom. This was the second time that day he had taken her to the bathroom. R.B. ran to her mother asking to go home. M.B. told R.B. to watch a movie while she finished her work. R.B. fell asleep on the couch.

[¶ 4.] R.B. spent the next day at her grandparent’s house. Grandmother overheard R.B. repeatedly say to a playmate, “He won’t let me play with the kittens.” When R.B.’s grandmother asked her to whom she referred, R.B. replied, “I can’t tell you.” After grandmother’s further urging, R.B. blurted out, “it was Wrench he licked my butt and said it was a secret and if I told anybody he wouldn’t let me play with the kittens.”

[¶ 5.] Later that same day R.B. repeated her “secret” to her mother expressing, “yes, Wrench licked my butt.” M.B. reported R.B.’s story to the police. On July 11, 2001, an investigator contacted M.B. On July 12, 2001, R.B. was taken to Black Hills Pediatrics for an interview and medical exam.

[¶ 6.] Guthmiller was arrested and charged with criminal pedophilia. A Pennington County jury convicted Guthmiller of the charge. The trial court also found on a Part II Information that Guthmiller was a habitual offender. Guthmiller was subsequently sentenced to life imprisonment without parole. Guthmiller appeals the following issues:

1. Whether the trial court erred in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.
2. Whether the trial court erred in finding R.B. competent to testify.
3. Whether the trial court erred in denying Guthmiller’s motion for mistrial.
4. Whether the trial court erred in denying Guthmiller’s motion for a new trial based on new evidence.
5. Whether the trial court erred in not dismissing the Part II Habitual Offender Information.
6. Whether the trial court erred in preventing Guthmiller from offering testimony relating to various matters.
7. Whether the trial court erred in sentencing Guthmiller to life in prison and whether the sentence is cruel and unusual punishment in violation of the United States and South Dakota Constitutions.
DECISION
1. Whether the trial court erred in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.
2. Whether the trial court erred in finding R.B. competent to testify.

[¶ 7.] The four-year-old child victim, R.B., testified at trial. The trial court also allowed R.B.’s statements to a friend and to her grandmother to be presented to the jury. Because issues one and two deal with the issue of R.B.’s competency to testify, we will address them together.

[¶ 8.] When reviewing eviden-tiary rulings this Court applies an abuse of discretion standard. State v. Cates, 2001 SD 99, ¶10, 632 N.W.2d 28, 33 (citing State v. Peterson, 1996 SD 140, ¶ 8, 557 N.W.2d 389, 391). “We review evidentiary decisions deferentially, reversing only when the court has abused its discretion.” State v. Dillon, 2001 SD 97, ¶ 24, 632 N.W.2d 37, 47 (citations omitted).

[¶ 9.] Reliable hearsay statements by a child under ten describing acts of sexual contact or rape are admissible under SDCL 19-16-38 which provides:

A statement made by a child under the age of ten, or by a child ten years of age ... describing any act of sexual contact or rape performed with or on the child by another, ... not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant ... in the courts of this state if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indi-cia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness.
However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

[¶ 10.] Guthmiller asserts that the trial court erred in finding that R.B. was competent to testify. Guthmiller maintains that because R.B. was not competent to testify, she was unavailable as a witness; and since she was unavailable as a witness, her statements should not have been admitted without corroborating evidence. SDCL 19-16-38.

[¶ 11.] The determination of the competency of a witness “is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination.” State v. Weisenstein, 367 N.W.2d 201, 203-04 (S.D.1985) (quoting State v. Reddington, 7 S.D. 368, 377, 64 N.W. 170, 172-73 (1895)). There is no arbitrary age which prohibits a child from testifying. State v. Anderson, 2000 SD 45, ¶ 24, 608 N.W.2d 644, 653 (citations omitted). In order to be a competent witness, a child must have “sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility. ...” Weisenstein, 367 N.W.2d at 204 (citations omitted). Our preference is to allow the child to testify in order for the jury to evaluate the child’s credibility. Anderson, 2000 SD 45, ¶ 30, 608 N.W.2d at 654.

[¶ 12.] The trial court initially determined that R.B. was competent to testify on October 2, 2001, on a motion to dismiss. On November 6, 2001, at another motion hearing, the trial court observed R.B. testify regarding her knowledge of the difference between a truth and a lie and viewed a tape of the interview between the Pennington County investigator and R.B. The court found R.B. competent to testify based on her ability to remember and relate what she saw. At trial, the court again repeated its finding that R.B. was competent to testify. “[A] trial judge is vested with wide discretion in determining competency and on appeal, its ruling is entitled to great weight, as it has had the opportunity to see and hear the child.” Anderson, 2000 SD 45, ¶23, 608 N.W.2d at 653 (citing State v. Pace, 301 So.2d 323, 325 (La.1974)).

[¶ 13.] The trial court additionally determined that R.B.’s statements bore sufficient indicia of reliability. Because R.B. testified at trial and the statements possessed sufficient indicia of reliability, no corroborating evidence was necessary. State v. Cates, 2001 SD 99, ¶ 10, 632 N.W.2d 28, 34.

As witnesses, children are neither inherently reliable nor inherently unreliable. Each child’s statement must be evaluated on its own merits. Several factors should be considered when assessing reliability. These include:
(1) the child’s age and maturity; (2) the nature and duration of the abuse; (3) the relationship of the child to the offender; (4) the coherence of the statement, bearing in mind that young children may sometimes describe incidents in age appropriate language and in a disorganized manner; (5) the child’s capacity to observe, retain, and communicate information; (6) the nature and character of the statement itself, considering the child’s developmental limitations in understanding and describing sexual behavior; (7) any motivation of the child to make a false allegation or a false denial; (8) the child’s susceptibility to suggestion and the integrity of the situation under which the statement was obtained; and (9) all the circumstances under which the statement was made.

Id. at ¶ 11, 632 N.W.2d at 34 (citations omitted). No one factor is dispositive. Id. “The unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” State v. Floody, 481 N.W.2d 242, 251 (S.D. 1992) (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638, 656 (1990)). The trial court must look at the totality of the circumstances. Wright, 497 U.S. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d 638 (1990).

[¶ 14.] In making its decision, the trial court properly looked at the totality of the circumstances and addressed the factors necessary to determine the reliability of the child’s testimony. The trial court entered the following findings of fact and conclusions of law after the November 6, 2001 hearing:

1. The child is able to recall past events in detail and relate them in a coherent manner.
2. The child’s description of the defendant’s actions contained consistent detail.
3. The child demonstrated knowledge of right and wrong and the difference between truth and falsehood.
4. There is no evidence of any reason for the child to fabricate her story....
5. The child knew the defendant prior to the incident and had no reason to fear him.
6. Because of the child’s graphic detail of the incident and her consistency in relating what happened, it is unlikely she made up the story.
7. Because of the child’s age it is almost impossible to believe that the child related the story for any reason other than its truth.
8.Considering the time, content and circumstances of the child’s statements, this Court concludes that there are sufficient indicia of reliability so that the general purposes of Chapters SDCL 19-9 to 19-18 and the interests of justice will best be served by the admissions of the statements into evidence.

[¶ 15.] Guthmiller has failed to show that the trial court abused its discretion in finding that R.B. was competent to testify and that her statements bore sufficient indicia of reliability and trustworthiness. Also, Guthmiller has failed to show that the trial court abused its discretion in admitting R.B.’s statements to her grandmother and a friend.

3. Whether the trial court erred in denying Guthmiller’s motion for mistrial.

[¶ 16.] Denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Owens, 2002 SD 42, ¶ 101, 643 N.W.2d 735, 758 (citing State v. Winckler, 260 N.W.2d 356, 368 (S.D.1977)). A trial court has “considerable discretion” in granting or denying a mistrial. State v. Perovich, 2001 SD 96, ¶ 23, 632 N.W.2d 12, 17 (citation omitted). “Only when this discretion is clearly abused will this court overturn the trial court’s decision.” Id. (citations omitted). In order to justify a mistrial an actual showing of prejudice must be made. Anderson, 2000 SD 45, ¶ 36, 608 N.W.2d at 655.

[¶ 17.] Guthmiller argues that a mistrial should have been granted based upon the court’s comments to R.B. in the presence of the jury. When R.B. took the stand the court made the following statements:

I’ve had a chance to watch [R.B.] testify before and I saw her on the videotape and the court has ruled that she’s competent. That means that she’s able to remember stuff and relate what she saw. And [R.B.], we’ve talked about this before and you indicated that you’d tell just what happened and wouldn’t make things up; is that right?

Guthmiller moved for a mistrial on the grounds that the court’s comments improperly gave the court’s “seal of approval” to R.B.’s testimony and invaded the province of the jury.

[¶ 18.] A trial court is required to make a determination on a child’s competency to testify. The statement made by the trial court, when taken in context, was for the purpose of establishing that the child was competent to testify and that the child appreciated the importance of telling the truth. Moreover, the trial court instructed the jury that “as in the case of all other witnesses, you are the sole judges of the credibility of the child who has testified in this case.” Guthmiller has failed to show how this brief comment by the judge prior to the child’s testimony prejudiced the jury. The jurors were fully able to observe the child and judge her credibility for themselves. The trial court did not abuse its discretion in denying Guthmil-ler’s motion for a mistrial.

4. Whether the trial court erred in denying Guthmiller’s motion for new trial based on new evidence.

[¶ 19.] The defendant maintains that a new trial should have been granted because of information contained in a letter from the victim’s mother. Mother wrote the letter as part of the victim’s impact statement to be included in the pre-sentence investigation. The letter was dated February 15, 2002, a month after the jury trial and a few days before the habitual offender trial. In the letter mother said that R.B. was sick of talking about the incident and that R.B. claimed she did not remember but that mother believed that R.B. did remember. The defendant argues that this evidence is exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and thus under the Brady rule, the defendant should have been provided with this evidence. The Brady rule réquires the prosecution to disclose material and exculpatory evidence. Id. at 87, 83 S.Ct. at 1197. Brady is not applicable here because the State was not in possession of the evidence of which Guthmiller complains. State v. Clabaugh, 346 N.W.2d 448, 450-51 (S.D.1984). Upon request the State is required to provide the defendant, access to any material in its possession. The defendant acknowledged that there was no indication that the state’s attorney had actual knowledge of the letter.

[¶ 20.] Furthermore, Guthmiller has failed to show that there is a “reasonable probability” that the statement would have caused the jury to reach a different verdict. Fowler v. Weber, 2000 SD 22, ¶ 17, 607 N.W.2d 252, 256. The child’s testimony at trial demonstrated her ability to remember the events. She was also subject to cross examination. Guthmiller’s attorney had the opportunity to reveal any discrepancies in her testimony and point them out to the jury. There is no showing that the trial court abused its discretion in denying Guthmiller’s motion for a new trial.

5. Whether the trial court erred in not dismissing the Part II Habitual Offender Information.

[¶ 21.] The law requires the prosecuting attorney to endorse the names of the witnesses known to him at the time of filing an information. SDCL 23A-6-10. Guthmiller moved to dismiss based on non-endorsement of witnesses on the Part II Habitual Criminal Information. The trial court denied Guthmiller’s motion on the condition that the prosecutor provide the names of the witnesses immediately. On November 19, 2001 the state filed a motion to endorse the names of two witnesses.

[¶ 22.] A similar issue was addressed in State v. Ganrude, 499 N.W.2d 608 (S.D.1993). In Ganrude, the defendant argued that the trial court abused its discretion when it allowed the late endorsement of witnesses on a Part II Information. Id. at 612. Although the defendant had not preserved the issue for appeal, we said that it is within the discretion of the trial judge to allow late endorsement of witnesses. Id. at 611 (quoting State v. White Mountain, 477 N.W.2d 86, 38 (S.D.1991)). “Although under SDCL 23A-6-10, an information on the principal charge is required to list the witnesses known to the prosecuting attorney, there is no comparable requirement for a habitual offender information in SDCL 22-7-11.” Id. at 612. Late endorsement was allowed absent bad faith or deliberate withholding in State v. Huettl, 379 N.W.2d 298 (S.D.1985). In Huettl we said,

Late endorsement may be allowed at the trial court’s discretion. In the absence of some showing that the state’s attorney acted in bad faith or abused his position in deliberately withholding the witness’ name and that the accused was substantially prejudiced, admission of the testimony will not constitute grounds for reversal.

Id. at 303 (internal citations omitted). There is no indication that the prosecution acted in bad faith or deliberately withheld the names of witnesses nor that Guthmiller was prejudiced.

[¶23.] Guthmiller has not shown that the trial court abused its discretion in allowing a late endorsement of witnesses on the Part II Information.

6. Whether the trial court erred in preventing [Guthmiller] from offering testimony relating to various matters.

[¶ 24.] Guthmiller asserts the trial court abused its discretion on a number of evidentiary rulings. “A trial court’s evi-dentiary rulings are presumed correct and are reviewed under an abuse of discretion standard.” Owens, 2002 SD 42, ¶ 78, 643 N.W.2d at 755 (citing State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15).

[¶ 25.] During trial, Guthmiller attempted to offer testimony regarding his relationships and interactions with children. The trial court excluded the evidence based on SDCL 19-12-5 (404(b)) which states in part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The trial court asked defense counsel, “Are you offering that testimony for some other purpose than to show he’s nice to little kids and wouldn’t do anything bad?” To which defense counsel responded, ‘Tes, that’s essentially it.” Since Guthmiller only offered the character trait to show that he acted in conformity with it on this occasion, it is not admissible under § 404(b). State v. Wright, 1999 SD 50, ¶ 17, 593 N.W.2d 792, 800.

[¶ 26.] Guthmiller argues to this Court that it should have been admitted under SDCL 19-12-4(l)(404(a)) or 19-12-7(405(b)). Guthmiller claims that the evidence was admissible as “[e]videnee of a pertinent trait of his character offered by an accused.” SDCL 19-12-4(1) (Rule 404(a)). Guthmiller further contends that the testimony was admissible under SDCL 19-12-7 (405(b)) which allows specific instances of conduct to be used when the character or a trait of character is an essential element of the charge, claim, or defense. Guthmiller did not offer the evidence under either § 404(a) or § 405(b) at trial. The trial court did not have the opportunity to consider the admissibility under either rule. There is no showing that the trial court abused its discretion by not admitting the evidence.

[¶ 27.] Guthmiller also alleges that the trial court erred in not allowing certain evidence directed at attacking the credibility of the mother M.B. Guthmiller claims evidence of M.B.’s desire to have a sexual relationship with him should have been admitted. Guthmiller further contends he should have been allowed to show that M.B. had made false allegations of sexual molestation against another man several years earlier. At trial, when Guth-miller attempted to elicit testimony from the man he claims M.B. had falsely accused, the trial court held it irrelevant. The trial court did allow some questioning concerning an alleged attraction of M.B. to Guthmiller but limited its extent.

[¶ 28.] “Questions of relevance of proffered testimony are committed to the discretion of the trial court....” State v. Olson, 408 N.W.2d 748, 752 (S.D.1987). This Court has held that to use prior allegations of a sexual crime to challenge credibility, the allegation must be demonstrably false. Dillon, 2001 SD 97, ¶ 26, 632 N.W.2d at 47 (citing State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986)). There is no evidence in the record to show that the alleged accusations against the other man were “demonstrably false” or material to the case. The credibility of M.B. was corroborated by the victim’s testimony as well as two other witnesses who verified the victim’s statements to her mother. The defendant himself corroborated certain areas of M.B.’s testimony. Likewise, the defendant has failed to show any prejudice resulting from the trial court’s decision to exclude the offered testimony. The defendant has the burden of showing prejudicial error. State v. Bingham, 1999 SD 76, ¶ 9, 600 N.W.2d 521, 523. The defendant must show that if evidence had been admitted, the jury probably would have returned a different verdict. Id.

[¶ 29.] Lastly, Guthmiller argues that the trial court erred in denying his motion in limine to exclude testimony of a conversation between M.B. and Guth-miller on or about July 14, 2001. M.B. confronted Guthmiller about R.B.’s allegations against him. M.B. testified that Guthmiller responded by saying, “he was sorry; if he could apologize to R.B.; and he was going to see a psychiatrist.” The defendant argues that conflicting versions of the conversation, his distraught mental state at the time, and his heavy use of methamphetamine days prior to the conversation made admission of the conversation unfairly prejudicial. The trial court denied the motion finding that the conversation was relevant to proving whether the incident with the child had occurred and further found the conversation not unduly or unfairly prejudicial. The process of balancing the probative value of evidence against the possible prejudicial effect is in the sound discretion of the trial court. State v. Thomas, 381 N.W.2d 282, 235 (S.D.1986). Just because evidence is harmful does not mean it was unfairly prejudicial. State v. Bunger, 2001 SD 116, ¶ 13, 633 N.W.2d 606, 610. There is no showing that the trial court abused its discretion in allowing the testimony.

7. Whether the trial court erred in sentencing Guthmiller to life in prison and whether the sentence is cruel and unusual punishment in violation of the United States and South Dakota Constitutions.

[¶ 30.] The legislature established in 1996 that the crime of pedophilia is punishable as a Class 1 felony with a maximum sentence of life in prison and a mandatory minimum of 25 years. In 1999, the legislature amended the statute enhancing the sentence for a second offense of pedophilia to mandatory life without parole. The statutory punishment imposes 25 years to life for a first offense, and a sentence of life without parole for a second offense.

[¶ 31.] Although this was Guthmiller’s first offense for the crime of pedophilia, he received a sentence of life without parole because the state charged him as a habitual criminal. The habitual offender statute SDCL 22-7-7 enhances the sentence to the next more severe felony class. In this case, the next more severe classification is a Class B felony, the punishment for which is a sentence of life in prison without parole.

[¶ 32.] Guthmiller claims that SDCL 22-22-30.1 applies exclusively in dealing with cases involving criminal pedophilia; and since this is his first offense pedophilia, he should not be sentenced as if he were a second offender. Guthmiller argues that the specific enhancement provision of SDCL 22-22-30.1 demonstrates that the legislature made an explicit decision to impose a mandatory life sentence only in cases involving a second offense of criminal pedophilia and that such a legislative directive effectively preempts the application of any other type of habitual offender treatment. Guthmiller argues that by allowing the state to enhance the penalty through the habitual statutes would result in anyone who had a prior felony conviction for any type of offense to be subject to a mandatory life sentence. He urges that this result cannot be reconciled with the specific legislative directive in SDCL 22-22-30.1 and the last sentence in SDCL 22-7-7 which states that “if the maximum imprisonment for the principal felony falls between two classifications, the principal felony shall be enhanced to the class which has the less severe maximum authorized punishment.” He asserts that the statutes are inconsistent and create absurd or unreasonable results. He claims that his sentencing should have been conducted within the classification of a Class 1 felony, which gives the trial court the discretion to consider a sentence of 25 years to life.

[¶ 33.] Guthmiller also challenges the sentence as cruel and unusual under the Eighth Amendment to the United States Constitution, as well as Article VI, Section 23, of the South Dakota Constitution. Guthmiller is 45 years old with no history of sex offenses. His criminal history involves four prior felony drug offense convictions. Even considering the circumstances of the present offense, he argues, the sexual molestation was of short duration, no physical violence or physical injury resulted and there was no evidence of any long occurring pattern of abuse. With no prior history of pedophilia, Guthmiller argues his sentence is cruel and unusual under the United States and South Dakota Constitutions.

[¶ 34.] The state contends that the statute is clear and unambiguous and nothing in the pedophilia statute or habitual criminal statutes indicates mutual exclusivity. Also, the state contends that it is within the legislative province to set criminal penalties and its enactments should be given deference. Further the state urges that Guthmiller’s prior drug related offenses are serious because of society’s recognition of the threat drugs pose. The state also points out the reprehensibility of the molestation of the young child regardless of absence of physical violence. The state further argues that Guthmiller was uncooperative with the court service officer and he refused to participate in the sex offender evaluation process. Additionally, Guthmiller failed to accept responsibility and showed no remorse.

[¶ 35.] First of all, we will address the issue of statutory conflict. This Court in Carroll v. Solem, found that a specific habitual criminal statute controls over a general habitual criminal statute. 424 N.W.2d 155 (S.D.1988). In Carroll, we held that the Driving Under the Influence enhancement statute could not be invoked to enhance the DUI to a felony and additionally enhanced by filing a habitual felony enhancement. Id. at 157. Carroll prohibited doubling penalty enhancements. The Carroll court concluded, “that SDCL 32-23-4 is a self-contained, specific habitual criminal statute. Rules of statutory construction require that a statute that is specific and express controls over a more general statute!.]” Id. We do not find Carroll controlling because there is no doubling of enhancement in the present case.

[¶ 36.] In State v. Layton, we approved the application of both the inmate doubling statute and the habitual criminal statute because the statutes serve distinct purposes in the criminal justice system. 337 N.W.2d 809 (S.D.1983). Although Guth-miller does not involve doubling penalty enhancements, the analysis of Layton is instructive as to the purpose of the habitual offender statutes.

The individual who commits felonies while incarcerated exhibits a callous disregard of our penal system, is dangerous to penitentiary personnel, and wreaks havoc with an institution which can exist only through discipline. SDCL 22-6-5.1, the inmate doubling statute, operates in part to protect the unarmed penitentiary guards who must risk their safety to enforce penitentiary rules. SDCL 22-7-8, our habitual offender statute, operates to protect society from the individual who, through his continued felonious conduct, exhibits that efforts of rehabilitation have failed. These two statutes serve distinct purposes, each being a vital concern to our criminal justice system.

Layton, 337 N.W.2d at 816 (emphasis added).

[¶ 37.] Presumably in an effort to protect children from sexual predators, the South Dakota Legislature enacted a separate pedophilia statute directed specifically at perpetrators over 26 years of age who rape children age 13 and under. The legislature set the penalty of up to life in prison and mandated a minimum sentence of 25 years for a first offense. A second offense automatically receives a sentence of life without parole. SDCL 22-22-30.1. The habitual offender statutes are designed to protect society from individuals who continue to commit felonies and by doing so have demonstrated that rehabilitation has failed.

[¶ 38.] Guthmiller’s argument raises the question of whether the legislature intended to have the habitual criminal statutes enhance a first time pedophilia crime to life in prison without parole or only intended that a second offense receive that punishment. In determining legislative intent, we need to examine the statute itself as well as any similar enactments. Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539.

[¶ 39.] The legislature revised the Criminal Code in 1976 updating the Field Code of 1877 and as part of that revision it classified felonies into six classes. The classifications defined the permissible punishments for particular offenses and except for Class 1 felonies set the maximum sentences and generally abolished minimum sentences. Richard D. Casey, Comment, The 1976 Revision of the South Dakota Criminal Code: Putting the Field Code Out to Pasture, 22 SD Law Rev 99 (1977). The revision established the habitual offender statutes which enhanced the punishment for repeat offenders. SDCL 22-7-7 provided that a sentence could be enhanced by one classification. SDCL 22-7-8 provided that a sentence could be enhanced up to life imprisonment if a defendant had been convicted of three or more prior felonies, one of which was a crime of violence. Subsequently, the legislature added A and B felony classifications and in 1984 added another habitual offender statute allowing enhancement of two classifications if the defendant had been convicted of three or more felonies none of which were crimes of violence. SDCL 22-7-8.1.

[¶ 40.] Since the 1976 revision, the legislature has amended the criminal code requiring specific mandatory minimum sentences for certain crimes. For example, in the 1980s the legislature added mandatory sentences for certain crimes involving drug manufacturing and distributing with specific enhancements for repeat drug offenders. SDCL Ch. 22-42. In 1992, the legislature mandated a minimum sentence for rape (Class 1 felony) and sexual contact with a child under 10. SDCL 22-22-1.2. The law additionally allowed the sentencing judge to depart from the mandatory sentence if mitigating circumstances allowed. SDCL 22-22-1.4.

[¶ 41.] Under the current scheme, the penalty for a first conviction for pedophilia is twenty-five years to life in prison. SDCL 22-22-30.1. The penalty for a second conviction for pedophilia is life in prison. Additionally, if the defendant has been convicted of prior felonies within the last 15 years, the state’s attorney has the discretion to charge the defendant as a habitual offender. SDCL 22-7-7, 22-7-9. If the defendant is found to be a habitual offender, the penalty is enhanced to life in prison without parole. The statutory scheme does not specify a downward departure if mitigating circumstances exist.

[¶ 42.] Nothing in the language of the statutes themselves or in the criminal statutes taken as a whole leads this Court to conclude that the legislature intended that the mandatory minimum sentence enhancement established in SDCL 22-22-30.1 preempts sentencing enhancement as a habitual criminal in SDCL 22-7-7. Each statute has a distinctive purpose. The habitual offender statute is designed to protect society from individuals who continue to commit felonies. The pedophilia statute is designed to protect children in our society from predators who rape children. The sentencing scheme is a policy decision within the purview of the legislature and will not be disturbed by this Court. Cf. State v. Stetter, 513 N.W.2d 87 (S.D.1994).

[¶ 43.] Next, we turn to Guth-miller’s claim that his life sentence without parole is cruel and unusual under the Federal and State Constitutions. Under a cruel and unusual analysis a life sentence would need to be grossly disproportionate. State v. Pugh, 2002 SD 16, ¶ 19, 640 N.W.2d 79, 85. “[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” Id. (citing State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580). If the sentence does not appear grossly disproportionate, no further review is necessary. State v. Hinger, 1999 SD 91, ¶ 16, 600 N.W.2d 542, 547. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. Id. We also consider “the gravity of the offense and the harshness of the penalty;” Solem v. Helm, 463 U.S. 277, 292 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983); and other relevant factors, such as the effect this type of offense has on society. Hunger, 1999 SD 91, ¶ 16, 600 N.W.2d at 547.

[¶ 44] This Court in Hinger found a life sentence grossly disproportionate. Hinger pleaded guilty to first degree rape involving sexual contact with his 7-year-old nephew by penile and digital penetration. Id. at ¶ 10. An analysis of the statutory scheme of the child-rape statutes led to the conclusion that the legislature intended the more severe the crime, the harsher the penalty imposed. Id. at ¶ 19.

The substantial increase in the maximum penalty for the first degree rape of a child under ten, as well as the imposition of mandatory minimum sentences for a first and subsequent offense reflects the public intent. State v. Peterson, 1996 SD 140, ¶ 22, 557 N.W.2d 389, 394. These changes reflect an accelerating concern with protecting children, Bonner, 1998 SD 30 at ¶ 28, 577 N.W.2d at 583, and an increasing intolerance for the sexual exploitation of children. State v. Raymond, 1997 SD 59, ¶ 33, 563 N.W.2d 823, 829.
In addition, the legislature’s establishment of a punishment range of ten years to life imprisonment for the first degree rape of a child under ten, clearly shows its intent that:
the more serious commissions of this crime to deserve sentences at the harsher end of the spectrum. “[I]t is a precept of justice that punishment for the crime should be graduated and proportioned to the offense.” Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 798, 798. Thus a trial court’s sentence ought to be proportionate to the particulars of the offense and the offender. Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent “to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1, 17 (1990).

Id. at ¶¶ 18-19 (citing Bonner, 1998 SD 30 at ¶ 25, 577 N.W.2d at 582). Because this was Hingers first felony and because the criminal sexual contact involved only one victim on two occasions with no other pattern or allegation of sexual abuse and because any escalation of criminal activity was due to Hinger’s “alcoholism and not any escalation in criminal sexual behavior,” a life sentence appeared to be grossly disproportionate. Id. at ¶ 22. The case was remanded for the trial court to determine if Hinger was capable of rehabilitation and whether his behavior “was compulsive or rose to the level of pedophilia.” Id. at ¶ 24.

[¶ 45.] In contrast, a life sentence for kidnapping and rape was not found tó be cruel and unusual in Pugh, 2002 SD 16, 640 N.W.2d 79. The facts in Pugh involved kidnapping a woman while driving her to retrieve the morning papers for her paper route. Pugh refused to let the woman out of the vehicle and drove around for an hour. Pugh sexually penetrated her, threatened to shoot her, performed cunnilingus on her and a second act of sexual penetration. Id. at ¶¶ 3-4. Applying the gross disproportionality test, this Court rejected Pugh’s claim.

As for proportionality in this sentence, Pugh’s record shows a background of violence against women, escalating over time. His criminal history includes a 1988 aggravated kidnapping conviction in Texas, as well as arrests in South Dakota for simple assault (domestic violence), violation of a protection order, and possession of a firearm by a felon. Thus, the kidnapping and rape of M.H.L. were not isolated incidents, but only the latest in a series of acts, all indicating an unlikely prospect for rehabilitation. Pugh’s lack of remorse for his crimes against M.H.L. bodes only worse for his chances of reform. The Legislature sanctioned life imprisonment for particularly egregious conduct such as kidnapping, and the trial court found that Pugh was incorrigibly dangerous to others and incapable of rehabilitation. As we have remarked, “successful challenges to the proportionality of particular sentences [will be] exceedingly rare,” for this Court gives great deference to sentencing decisions. State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 18. In Bonner, we held that if a sentence fails “to suggest gross disproportionality, our review ends.” Bonner at ¶ 17. We find no inference of gross disproportionality in this sentence.

Id. at ¶ 19.

[¶ 46.] As to Guthmiller’s claim, we must first determine if the sentence appears grossly disproportionate. First, we consider the conduct involved. According to the four-year-old victims testimony, Guthmiller licked her vaginal area while the two were in the bathroom together. He told the child not to tell and threatened that if she did she would not be able to play with the kittens. The incident affected the child emotionally and physically.

[¶47.] It is significant, however, that Guthmiller’s sentence is not just for the present conduct but also for his history of criminal activity. The pre-sentence investigation provided to the trial court revealed a history of criminal arrests and convictions dating back to 1983 beginning with a disorderly conduct conviction. His arrests include simple assault, domestic violence, and failure to appear, all of which were dismissed. In 1989, he was convicted of felony possession of marijuana and sentenced to 24 months in the South Dakota State Penitentiary with six months suspended. In 1990 and 1996 Guthmiller was convicted in federal court of conspiracy to distribute a controlled substance. He reported in his pre-sentence investigation that he had served 27 months in federal prison and received six years of supervised release. While on supervised release, Guthmiller said he had relapsed and reported this to his probation officer. He did an additional five months in federal prison for the violation. While serving the five months, he was charged and convicted of conspiracy to distribute a controlled substance and received 36 months in federal prison and four years of supervised release. He completed his supervised release in 1999. He admitted that he continued to use methamphetamine. The record indicates he had been using methamphetamine several days before and on the day the present crime was committed. Guth-miller has no prior criminal convictions involving sex crimes or pedophilia.

[¶ 48.] Next, we must give utmost deference to the legislature and the sentencing court. The legislature has determined that a sex crime against a child is a serious concern and one which should be punished severely. The maximum penalty for the crime is up to life in prison. The other statutes at play here are the habitual criminal statutes under which Guthmil-ler was charged as a repeat offender. It was the habitual offender status coupled with the serious crime of pedophilia that caused the severe sentence. The scheme of the habitual criminal statutes allows the penalty of the present felony to be increased. The United States Supreme Court recently upheld the application of California’s recidivist statutes in Ewing v. California, — U.S.-, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). The Court upheld Ewing’s sentence of 25 years to life in prison for the offense of felony grand theft involving the theft of three golf clubs priced at $399 each. Id. at 1183. Under the three strikes law, he was also found to have been convicted previously of four serious or violent felonies of burglary and robbery. Id. at 1184. The Court found that the sentence was not grossly disproportionate and was not cruel and unusual punishment in violation of the Eighth Amendment’s prohibition. Id. at 1190. California’s recidivist enhancement statutes allow the California trial courts discretion to avoid imposing the penalty by reducing certain felonies to misdemeanors or by vacating allegations of prior “serious” or “violent” convictions. Id. at 1183. The trial court did not deviate in Ewing’s case and imposed 25 years to life. The Court emphasized that criminal sentencing schemes are policy decisions made by state legislatures as long as a state “has a reasonable basis for believing that dramatically enhanced sentences for habitual felons ‘advance!] the goals of [its] criminal justice system in any substantial way.’” Id. at 1189.

Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Weems, 217 U.S. at 379, 30 S.Ct. 544, 54 L.Ed. 793; Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Solem, 463 U.S. at 290, 103 S.Ct. 3001, 77 L.Ed.2d 637; Harmelin v. Michigan, 501 U.S. 957, 998, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (KENNEDY, J., concurring in part and concurring in judgment).
Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution “does not mandate adoption of any one peno-logical theory.” Harmelin, 501 U.S. at 999[, 111 S.Ct. 2680] (KENNEDY, J., concurring in part and concurring in judgment). A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.5, pp. 30-36 (1986) (explaining theories of punishment). Some or all of these justifications may play a role in a State’s sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.

Id. at 1187-88.

[¶49.] In the present case, the trial court imposed life in prison without parole. Considering the involved conduct, all the prior criminal conduct, his chronic drug addiction, and giving utmost deference to the legislature and the sentencing court; we conclude that Guthmiller’s sentence does not appear grossly disproportionate. Since the sentence fails “to suggest gross disproportionality, our review ends.” Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d at 580.

[¶ 50.] Guthmiller’s conviction and sentence are affirmed.

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

      . SDCL 22-7-11 states:
      An allegation that a defendant is an habitual criminal must be filed as a separate information at the time of, or before, his or her arraignment. The information must state the times, places and specific crimes alleged to be prior convictions and must be signed by the prosecutor. An official court record under seal or a criminal history together with fingerprints certified by the public official having custody thereof will be sufficient to be admitted in evidence without further foundation to prove the allegation that the defendant is an habitual criminal.

      . SDCL 22-22-30.1 states:
      Criminal pedophilia is any act of sexual penetration accomplished with a victim less than thirteen years of age by any person twenty-six years of age or older under any circumstances not constituting incest as defined in subdivision 22-22-1(6). Criminal pedophilia is a Class 1 felony. If any person is convicted of criminal pedophilia, the court shall impose a minimum sentence of twenty-five years for a first offense. If any person is convicted for a second offense, the court shall impose a sentence of life without parole.

      . SDCL 22-7-7 states:
      When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe. The determination of whether a prior offense is a felony for purposes of this chapter shall be determined by whether it is a felony under the laws of this state or under the laws of the United States at the time of conviction of such prior offense. For the purpose of this section, if the principal felony is not classified it shall be enhanced to the class which has an equal maximum imprisonment. For the purposes of this section, if the maximum imprisonment for the principal felony falls between two classifications, the principal felony shall be enhanced to the class which has the less severe maximum authorized imprisonment.

      . In Pugh, this Court adopted the gross disproportionately test for state constitutional analysis and abandoned the “shock the conscience” test. Id. at ¶ 17.


author: MEIERHENRY, Justice. GILBERTSON, Chief Justice

text:
    2003 SD 81
    Donald R. SHORE, Guardian H.L.C. and B.A.C., minor children, Petitioner and Appellee, v. Bronson CRUZ, Respondent and Appellant.
    No. 22670.
    Supreme Court of South Dakota.
    Considered on Briefs May 27, 2003.
    Decided July 16, 2003.

      Thomas E. Brady of Brady & Pluimer, Spearfish, for petitioner and appellee.
    John R. Murphy, Rapid City, for respondent and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Donald Shore (Shore) filed a petition for a protection order for stalking or physical injury against Bronson Cruz (Cruz). Shore brought the petition in his name as legal guardian for H.C. and B.C., Cruz’s minor children. The trial court issued a protection order on November 7, 2002. ■ Cruz appeals the order. We reverse.

FACTS

[¶2.] Shore and his wife Cindy have legal custody of their grandchildren H.C. and- B.C. The mother of the children is Shore’s daughter and the father is Cruz. In June of 1996, Cruz began serving a prison sentence in Colorado state prison for sexual assault on a child and attempted sexual assault upon an adult. Cruz’s convictions were not related to sexual assault on his children H.C. and B.C. Cruz was sentenced to six and one half years in prison and served his sentence in full.

[¶ 3.] Cruz was released from prison October 7, 2002. After his release, Cruz began living with his parents in Walsen-burg, Colorado. On October 25, 2002, Shore filed a petition in Meade County, South Dakota for a protection order against Cruz. The petition outlined Cruz’s past incarceration for sexual assault on a child and stated that Shore feared that Cruz would come to South Dakota and cause H.C. and B.C. harm now that he was released from prison. On October 25, 2002, the trial court entered an ex parte temporary protection order against Cruz.

[¶ 4.] On November 4, 2002, Cruz filed a pro se motion to dismiss. Cruz claimed that the court lacked subject matter jurisdiction and that Shore failed to state a claim. No pretrial hearing was held on Cruz’s motion to dismiss. On November 7, 2002, the trial court took evidence on the petition for the permanent protection order. Shore appeared with his attorney; Cruz appeared pro se. At the hearing, Shore’s attorney called as witnesses Cindy Shore, maternal grandmother and guardian of the children, and Cruz.

[¶ 5.] The grandmother testified that she and her husband Donald Shore had physical custody of the two children since 1996 and legal custody since April of 1999. A Colorado court granted the Shores custody and ordered Cruz to have no contact with the children. At the time of the protection order hearing, the children were nine and six years of age. Both grandmother and Cruz testified that Cruz had not been in contact with the children since the “no contact” order had been entered six years ago. Grandmother testified that she believed Cruz had molested his daughter, H.C. She admitted she had no proof that Cruz molested his daughter except her feelings and his criminal conviction for child abuse. She further testified that her feelings also stemmed from the custody battle when the Shores received custody. On cross examination, grandmother agreed that Cruz had not written or called the children or otherwise contacted the children since the “no contact” order was entered. She said she feared that Cruz would contact the children now because he was out of prison. It is undisputed that Cruz had not attempted to contact the children since his release from prison.

[¶ 6.] Cruz admitted he pleaded guilty to sexual assault on a child for which he served his full term in prison from June of 1996 to October of 2002. Cruz further agreed that the no contact order in the custody case was appropriate. Cruz indicated to the trial court that he had obeyed the Colorado court’s no contact order and had not had contact with the children or the Shores in over six years. Cruz claimed that Shore’s ulterior motive was to harass him.

[¶ 7.] At the conclusion of the testimony, the trial court found jurisdiction and venue were properly before the court and that stalking as defined by SDCL 22-19A had taken place. The trial court entered a protection order on November 7, 2002 for a period of three years. Cruz appeals the order raising the following issues:

1. Whether the trial court abused its discretion in granting the protection order.

2. Whether the trial court erred in not granting Cruz’s motion to dismiss.

STANDARD OF REVIEW

[¶ 8.] This Court recognizes that protection orders or restraining orders are a form of injunction. Sjomeling v. Stuber, 2000 SD 103, ¶ 11, 615 N.W.2d 613, 616. The trial court has sound discretion in granting or denying an injunction. Id. A ruling on injunctive relief will not be disturbed unless we find an abuse of discretion. Id. “An abuse of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.” Id. (quoting Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598 N.W.2d 507, 511) (citations omitted).

DECISION

1. Whether the trial court abused its discretion in granting the protection order.

[¶ 9.] Cruz claims that the trial court abused its discretion in entering a protection order. Cruz claims that because Shore never alleged any incidents of stalking, there was insufficient evidence to support the issuance of a protection order. The trial court made no oral findings of fact from the bench at the conclusion of the hearing nor did the trial court enter written findings of fact. The court’s only pronouncement was that “stalking as defined by our law has taken place, there is a need for a protection order, and I’ll order it be entered.... ” The trial court merely concluded that stalking had taken place under SDCL 22-19A and entered a protection order. Without oral or written findings of fact, we cannot meaningfully review the factual basis of the trial court’s ruling.

[¶ 10.] The legislature defined when a person’s actions constitute stalking. In order to obtain a protection order, the petitioner must prove that the respondent’s conduct falls within the definition of stalking. Stalking is defined as follows:

Any person:
(1) Who willfully, maliciously, and repeatedly follows or harasses another person;
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.

SDCL 22-19A-1.

[¶ 11.] Shore’s allegations in his petition described no conduct which fits within the definition of stalking. The petition form requires a petitioner to check one or more of four categories of acts constituting stalking. Shore filled out the form as follows:

I AM ASKING THE COURT FOR A PROTECTION ORDER BASED UPON THE FACTS BELOW:
On or about (month) 05 (day) 10 (year) 95 at approximately 4:50 o’clock pm (am/pm) the person against whom I seek this Protection Order committed the following acts of stalking:
□ Willfully, maliciously, and repeatedly followed me.
□ Harassed me by pursuing a willful and knowing course of conduct which seriously alarms, annoys or harasses me with no legitimate purpose and that the pattern of conduct is a series of acts over a period of time showing a continuing pattern of harassment.
□ Threatened me in a manner that makes me afraid of great bodily injury or death.
□ I, as the Petitioner, have suffered physical injury as a result of an assault or a crime of violence.

Shore marked none of the boxes as applicable. The petition also requires the petitioner explain in detail the respondent’s conduct on the date specified. Shore completed that portion of the form as follows:

“was arrested for sexual assault on a child.” (Shore then listed the Colorado statute and five Colorado case numbers.) “Criminal Attempt — Third degree Sexual Assualt-(sic) case no. 95F1263 was sentenced to 11 years. Colorado D.O.C D.O.C. No # 90340 No contact w/anyone under 18 yrs.

[¶ 12.] Another section of the petition form requires the petitioner to explain the need for a temporary protection order. Shore completed the section by stating, “if respondent comes into contact with said Petitioners they will be in danger of physical and mental abuse as well as in danger of possible kidnapping, or sexual abuse” and “respondent has just been released from prison and I feel he will come to South Dakota to seek out the children and possibly seek revenge or to kidnap or abuse children. And respondent recieved (sic) no treatment for these matters in prison.”

[¶ 13.] A hearing was held November 7, 2002. Only two witnesses testified at the hearing, Cindy Shore, the grandmother, and Cruz. The grandmother testified that she had concern for the physical safety of her grandchildren. When asked why she was concerned, Cindy stated that when H.C. first came to live with her she believed the child exhibited signs of sexual abuse. Although she had no proof that Cruz sexually assaulted H.C., she felt that Cruz was a threat to the children. She felt that if the protection order was not granted, Cruz would try to contact them. On cross-examination, Cruz asked Cindy why she thought he would try to contact his children now when he had not contacted them in four years, to which she responded, “because you’re out of prison and I believe that you will.”

[¶ 14.] It is undisputed that Cruz had made no attempt to contact his children since his release from prison. In fact, Cruz was living six hundred miles away from his children at the time the petition was filed and had not had contact with his children in four years.

[¶ 15.] Shore emphasizes that Cruz was in prison for sexually assaulting a minor. However, Cruz has served his sentence and claims he was in compliance with the sex offender registration laws. There is no evidence to support a contention that Cruz has in the past engaged in conduct directed at H.C. or B.C. that would be regarded as stalking under SDCL 22-19A-I. The entire basis of Shore’s claim was that Cruz had just gotten out of prison and that he and his wife had a feeling that Cruz would try to contact the children. Shore offered no evidence alleging any incident of stalking.

[¶ 16.] Initially, Shore failed to mark any of the elements of stalking in his petition. The obvious reason is because Cruz had not displayed any conduct which would fall within the definition of stalking; therefore, Shore left that portion of the form blank. The evidence at trial also failed to show conduct falling within the definition. There was no evidence that Cruz “willfully, maliciously, and repeatedly” followed or harassed the children. He had not made “a credible threat” to the children “with the intent to place” the children “in reasonable fear of death or great bodily injury” nor had he “willfully, maliciously, and repeatedly harasse[d]” the children “by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.” SDCL 22-19A-1.

[¶ 17.] A finding that stalking has taken place is an abuse of discretion when the evidence fails to show overt acts that fall within the definition of stalking in SDCL 22-19A-1. The trial court abused its discretion in granting a protection order. We reverse.

2. Whether the trial court erred in not granting Cruz’s motion to dismiss.

[¶ 18.] In light of our ruling on Issue One, we need not address this issue.

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

GILBERTSON, Chief Justice

(concurring).

[¶20.] I join in the Court’s opinion. The conduct alleged by Shore is not within the scope of SDCL chapter 22-19A.

[¶ 21.] The Legislature may have had this in mind when in 2003 it passed SDCL 25-10-12.1 through 12.5 which will go into effect on July 1, 2003. These new provisions allow for the enforcement in South Dakota of foreign out-of-state domestic violence protection orders.

[¶ 22.] As referenced by the Court’s opinion in this case, on May 20, 1999 the District Court of Huerfano County, Colorado issued an order which in part granted custody of the children to the Shores and further ordered that “[Cruz] shall have no contact with the minor children herein.” As SDCL 25-10.12.1 through 5 was not enacted at the time of the hearing before the trial court in South Dakota, obviously it was not an option available to the trial court.