text:
    2007 SD 22
    STATE of South Dakota, Plaintiff and Appellant, v. Steven R. PURSLEY, Defendant and Appellee.
    No. 23951.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2007.
    Decided Feb. 28, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Michael Stonefield, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] While on parole for a prior conviction, Steven R. Pursley (Pursley) was charged with possession of a controlled substance, in violation of SDCL 22-42-5, and possession of marijuana, in violation of SDCL 22-42-6. Pursley moved to suppress evidence of possession arguing that it had been illegally obtained through a search without reasonable suspicion in violation of the Fourth Amendment to the United States Constitution, Article IV, section 11 of the South Dakota Constitution and in violation of the provisions of his parole agreement with the South Dakota Department of Corrections, Board of Pardons and Paroles (the Board). On December 20, 2005, the South Dakota Seventh Judicial Circuit issued its decision granting Pursley’s motion. On January 12, 2006, the State filed a petition with this Court seeking permission to file an intermediate appeal. On February 24, 2006, this Court issued an order granting the appeal. We reverse.

FACTS AND PROCEDURE

[¶2.] Pursley was incarcerated in the South Dakota State Penitentiary following a November 2003 conviction for the offense of accessory to first degree manslaughter. On November 18, 2004, Purs-ley was granted parole by the Board. Pursley’s parole was conditioned upon the provisions of the Supervision Agreement (the Agreement) that he entered into with the Board. Pursley signed the Agreement prior to his release on October 15, 2004, and again on the day that his parole commenced, November 18, 2004. In agreeing to these provisions, Pursley acknowledged that his parole was subject to the Board’s supervision and that it had the authority to revoke his parole for any violations thereof. Parole Agent Brian Robb (Robb) was assigned to supervise Pursley.

[¶ 3.] As part of the Agreement, Purs-ley was required to abstain from the use or possession of alcohol and illegal drugs. The Agreement included a search and seizure provision prefaced on a parole agent’s or law enforcement’s “reasonable suspicion” that Pursley was in violation of its terms. Pursley was also subject to “Special Limitations” as provided under paragraph 13 of the Agreement. These included his agreement to participate and cooperate as directed in alcohol and drug treatment and random urinalysis (UA) and preliminary breath tests (PBT) as provided under paragraph 13e. When Pursley signed the Agreement his signature was directly below an acknowledgement that he had read and understood the Agreement.

[¶ 4.] Robb’s supervision program included approximately two scheduled meetings per month in his office with Pursley as well as unscheduled visits to Pursley’s residence. Through discussions with Pursley during these meetings, Robb became aware that Pursley had problems with illegal drug use prior to his incarceration. Robb directed Pursley to participate in a substance abuse aftercare program as provided for in the Agreement under the “Special Limitations” of paragraph 13e. Pursley’s participation in this program was less than satisfactory. As a consequence, on one occasion Robb had him incarcerated for two days. During several of the office visits, Robb requested Pursley to submit to UAs. Pursley complied with the requests and initially the results of these tests were negative for evidence of drug use.

[¶ 5.] On or before March 11, 2005, Robb received an anonymous telephone call from a person who stated that Pursley had been using illegal drugs. As a result of this call and Pursley’s admission of prior drug use, Robb contacted Pursley and asked him to submit to a UA. On March 11, 2005, Pursley came to Robb’s office where the sample was collected. The results of this UA were negative.

[¶ 6.] Still concerned Pursley might be violating the provisions of the Agreement, Robb again asked Pursley to submit to a UA at their scheduled meeting on April 1, 2005. The results from this UA were positive for methamphetamine. Robb discussed these results with Pursley during their scheduled meeting on April 18, 2005. Pursley admitted to Robb that he had used methamphetamine. Robb asked Pursley to submit to another UA at this meeting. Robb performed an on-site analysis that indicated positive for methamphetamine and marijuana. Pursley then admitted to using marijuana and methamphetamine again. Pursley’s parole was revoked and he was taken into custody by Robb at that time.

[¶ 7.] Robb provided the results of the UAs to the Pennington County State’s Attorney. Pursley was subsequently indicted for violation of SDCL 22-42-5, possession of a controlled substance. The state’s attorney also charged him with being a habitual criminal.

[¶ 8.] Pursley filed a motion with the circuit court to suppress evidence relating to the new charges alleging that his rights under the Fourth Amendment to the United States Constitution and Article IV, section 11 of the South Dakota Constitution had been violated when he was required to submit to a UA on April 1, 2005, absent reasonable suspicion. Pursley also argued in his brief in support of the motion that requiring him to submit to a UA without reasonable suspicion was a violation of the provisions of the Agreement.

[¶ 9.] Following a hearing the circuit court issued its written decision, incorporated into its findings of fact and conclusions of law, granting Pursley’s motion. This Court granted a request by the State for permission to file an intermediate appeal of the circuit court’s decision to suppress. The State raises the following issues on appeal:

1. Whether Parole Agent Robb needed reasonable suspicion to request Pursley to submit to a UA.
2. If required, whether Robb had reasonable suspicion.

STANDARD OF REVIEW

[¶ 10.] Interpretation of a contract, such as a parole agreement, is a question of law, reviewed de novo. Prunty Const., Inc. v. City of Canistota, 2004 SD 78, ¶ 10, 682 N.W.2d 749, 753 (citing Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 8, 676 N.W.2d 390, 393). This Court gives no deference to a circuit court’s conclusions of law and applies the de novo standard. State v. Schouten, 2005 SD 122, ¶ 9, 707 N.W.2d 820, 822-23 (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25). A circuit court’s findings of fact are reviewed under the clearly erroneous standard. State v. Aaberg, 2006 SD 58, ¶ 8, 718 N.W.2d 598, 600 (citing State v. Mattson, 2005 SD 71, ¶ 14, 698 N.W.2d 538, 544-45 (citing State v. De La Rosa, 2003 SD 18, ¶ 5, 657 N.W.2d 683, 685)).

ANALYSIS AND DECISION

[¶ 11.] Whether Parole Agent Robb needed reasonable suspicion to request Pursley to submit to a UA.

[¶ 12.] Pursley concedes that the United States Supreme Court’s decision in Samson v. California, - U.S. -, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), now precludes the Fourth Amendment argument he successfully made in support of his motion to suppress. Pursley’s argument, that the circuit court’s suppression order should be affirmed, now rests on his assertion that general principles of contract construction apply to the interpretation of the Agreement. For purposes of this contractual analysis, we must assume that reasonable suspicion did not exist.

[¶ 13.] Pursley cites Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 25, 709 N.W.2d 350, 357; Campion v. Parkview Apartments, 1999 SD 10, ¶ 34, 588 N.W.2d 897, 903; and, Hicks v. Brookings Mall, Inc., 353 N.W.2d 54, 56 (S.D.1984), for the contract principle that ambiguities should be construed against the drafter. The circuit court concluded and Pursley argues that when read together, paragraphs 5 and 13e of the Agreement are ambiguous or conflicting and therefore should be construed in his favor to require that there be reasonable suspicion before he can be requested to submit a UA. We disagree with the conclusion that the Agreement is ambiguous as to these provisions.

In interpreting a contract, we seek to ascertain and give effect to the intention of the parties; at the same time, to find the intention of the parties, we rely on the contract language they actually used.... It is a fundamental rule of contract interpretation that the entire contract and all its provisions must be given meaning if that can be accomplished consistently and reasonably. However, when provisions conflict and full weight cannot be given to each, “the more specific clauses are deemed to reflect the parties [sic] intentions-a specific provision controls a general one.”

Prunty Const., Inc., 2004 SD 78, ¶ 16, 682 N.W.2d at 756 (quoting Carstensen Contracting, Inc. v. Mid-Dakota Rural Water Sys., Inc., 2002 SD 136, ¶ 8, 653 N.W.2d 875, 877) (internal citations omitted).

[¶ 14.] We conclude that a fair reading of the Agreement reveals that paragraph 5 is a general provision requiring reasonable suspicion for all parolee searches and seizures. The “Special Limitations” provisions of paragraph 13e list UAs and PBTs as specific exceptions to the reasonable suspicion requirement. Paragraph 13e unambiguously required Pursley to submit to UAs and PBTs as the checkbox provision covering those tests is marked and follows the clear, introductory language that states, “I will participate, cooperate and complete any programs as directed!.]” Moreover the checkbox provision expressly prefaces the tests as being random UAs and PBTs.

[¶ 15.] Random is defined as “[flacking aim or method, purposeless, not uniform, applies to that which occurs or is done without careful choice, aim, or plan.” Webster’s New World College Dictionary 1187 (4th ed. 2001). This is clearly in contrast to reasonable suspicion that Black’s Law Dictionary defines as “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” Id. at 1273 (7th ed. 1999). Under the provisions of the Agreement, requiring the parole agent to show reasonable suspicion before being able to request a random UA would create an inconsistent result.

[¶ 16.] The document in dispute appears to be one that is used on a statewide basis by the Department of Corrections. Thus, it can be tailored to meet the needs of an individual parolee as determined by his or her parole agent. Since Pursley had a history of problems with drugs it is logical to conclude that he would have to agree to random UAs and PBTs as special conditions of his parole. Conversely, a professional identity thief with no history of addiction problems would logically not have the special conditions. The circuit court, consistent with Pursley’s assertion, construed the provisions of paragraph 13e as de facto general provisions based on Robb’s testimony that in eight years as a parole agent he had never seen an agreement that did not include random UA and PBT provisions. While this individual agent may consider random testing uniformly appropriate based on his type of caseload that does not make it a uniform statewide condition of parole for all parolees. The circuit court’s interpretation also overlooks Robb’s further testimony that the incidence of alcohol and drug-related criminal offenders is “very high.”

[¶ 17.] Not only was the document not ambiguous, Pursley conceded the same on both occasions that he signed the agreement — first, while yet incarcerated and then again the day he was paroled. Immediately above his signature are the words: “I have read or have had read to me, fully understand and agree to abide by the conditions of supervision.”

[¶ 18.] For all the forgoing reasons we reverse.

[¶ 19.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Specifically, paragraph 5, "SEARCH and SEIZURE” provided: I will submit my person, property, place of residence, vehicle and personal effects to search at any time, with or without a search warrant, whenever reasonable suspicion is determined by a parole agent or law enforcement.

      . The introductory language of paragraph. 13 "SPECIAL LIMITATIONS” stated:
      I will faithfully comply with special limitations and conditions imposed by the Court, the Board of Pardons and Paroles, and my Parole Agent as follows [.] Following this introductory statement, the paragraph included several checkbox provisions. Subparagraph "e" was a checkbox provision included in Pursley’s supervision agreement. The introductory language of subparagraph “e” stated:
      I will participate, cooperate and complete any programs as directed[.]
      Additional checkboxes followed this statement. Programs that Pursley agreed to under subparagraph "e” included “Alcohol/Drug Treatement [sic ]/Aftercare/AA/NA” and “Random UA's and PBT's.”

      . Citing Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 368, 118 S.Ct. 2014, 2022, 141 L.Ed.2d 344 (1998) (holding that the exclusionary rule does not apply to parole revocation hearings), Pursley conceded that his parole was not unlawfully revoked. Hence, Pursley’s parole revocation is not an issue before this Court.

      . In fairness to the circuit court, Samson had not been decided at the time the circuit court made its decision on the Fourth Amendment argument.

      . Since we hold that the Agreement did not require a showing of reasonable suspicion before Pursley could be requested to submit to a UA, we do not need to address the second issue raised by the State on appeal.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2007 SD 21
    STATE of South Dakota, Plaintiff and Appellee, v. Lance G. OWEN, Defendant and Appellant.
    No. 24011.
    Supreme Court of South Dakota.
    Argued Jan. 8, 2007.
    Decided Feb. 28, 2007.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Peter R. Jones, Debra Flute, Gregory J. Garvey, Sisseton Wahpeton Oyate, Public Defender, Agency Village, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Lance G. Owen (Owen) was convicted by a jury of aggravated assault and first degree murder arising out of the stabbing death of Adrian Keeble (Keeble). He raises several issues on appeal. We affirm.

FACTS

[¶ 2.] About 2:30 a.m. on January 19, 2005, Owen and his girlfriend, Dawn De-Marrias (DeMarrias), joined a group of people at Heather DeCouteau’s (DeCou-teau) home in Peever, SD. In the group were DeCouteau, Vanessa LaFromboise (LaFromboise), Ray Shepherd (Shepherd), Curt Snow (Snow) and the victim, Keeble. DeCouteau and LaFromboise had been drinking alcohol and smoking marijuana for the last several hours. Snow and Kee-ble had arrived a few minutes prior to Owen and had brought more alcohol and beer. Owen had brought some marijuana.

[¶ 3.] The group proceeded to drink and smoke Owen’s marijuana. As the night progressed, Owen asked DeCouteau if she knew anyone who would trade him methamphetamines for his marijuana. Owen also talked about selling the rest of his marijuana.

[¶ 4.] At some point that night, Keeble allegedly stole some of Owen’s marijuana. According to Snow, Owen was looking directly at Keeble when he stole it. According to Shepherd, Owen did not see who took it, but noticed it was gone. Owen became angered and repeatedly asked who took his “weed.”

[¶ 5.] Shepherd saw Owen “grab the side of Keeble’s head and make ‘a lot’ of jabbing motions,” which struck Keeble. DeCouteau saw that Owen had the fillet knife from her sink and saw him stab Keeble several times in the neck. Snow did not see Owen stab Keeble but saw the knife in Owen’s hand after Keeble fell to the floor. Snow went after Owen and ended up with a serious cut on his hand. Owen managed to escape after his girlfriend, DeMarrias, threw herself on Snow and then fled with Owen. The remaining members of the group called 911 and attempted to perform CPR on Keeble. He was pronounced dead at the Indian Health Service Hospital in Sisseton.

[¶ 6.] A warrant was issued for Owen’s arrest. He was found and arrested in Montevideo, Minnesota on January 20, 2005, late in the evening. Department of Criminal Investigation (DCI) agent, Craig Price (Price), drove to Minnesota and began interviewing Owen at 8 a.m., January 21. During this interview, Owen admitted he stabbed Keeble repeatedly in the throat, head and face. He was brought before a magistrate for an extradition hearing at 1:30 p.m. that afternoon.

[¶ 7.] Owen was indicted with first degree murder for the death of Keeble and aggravated assault charges for the cut to Snow’s hand. Prior to the trial, Owen moved to suppress his statements to Price. After a suppression hearing, the trial court denied the motion. Owen also made a motion to dismiss the indictment alleging Peever housing was a dependant Indian community and the State had no jurisdiction over his crime. The court denied this motion finding Peever was under the jurisdiction of the State of South Dakota.

[¶ 8.] After a jury trial, Owen was found guilty of both first degree murder and aggravated assault. He received a life sentence for Keeble’s murder and fifteen years for the aggravated assault, to run concurrently. He appeals and raises the following issues:

1. Whether the trial court abused its discretion in admitting other acts evidence.
2. Whether the trial court erred in denying the suppression of Owen’s statements to law enforcement.
3. Whether the trial court erred by denying Owen’s requested self-defense instruction.
4. Whether there was sufficient evidence to prove first degree murder.
5. Whether the State had jurisdiction over Owen’s crimes.
6. Whether there was a Batson violation in the State’s exercise of its peremptory challenges.

STANDARD OF REVIEW

[¶ 9.] Evidentiary decisions of a trial court are presumed correct. State v. Boston, 2003 SD 71, ¶ 14, 665 N.W.2d 100, 105. We review evidentiary decisions and the denial of a proposed jury instruction for an abuse of discretion. Id. (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129). We determine “whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Id.

[¶ 10.] Questions of jurisdiction are legal questions reviewed under a de novo standard. Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627. Likewise, whether statements made to police were voluntary is a legal question and is reviewed de novo. State v. Holman, 2006 SD 82, ¶ 13, 721 N.W.2d 452, 456 (quoting State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30).

[¶ 11.] A challenge to the State’s use of peremptory challenges is reviewed for clear error, for the finding of intentional discrimination is a factual determination. State v. Martin, 2004 SD 82, ¶¶ 13, 16, 683 N.W.2d 399, 403, 405.

[¶ 12.] 1. Whether the trial court abused its discretion in admitting other acts evidence.

[¶ 13.] Prior to trial, the trial court ruled that it would not allow testimony regarding some of Owen’s prior bad acts, but the State could use testimony regarding Owen’s statements and actions that happened that night. During trial, the State was allowed to present testimony that Owen brought marijuana and shared it with the group and discussed selling or trading marijuana for methamphetamines. Owen alleges the trial court abused its discretion in admitting this testimony because the prejudicial effect substantially outweighed the probative value. He also argues the trial court did not conduct the required balancing test on the record.

[¶ 14.] The defendant’s other acts may be admissible under SDCL 19-12-5 (Rule 404(b)). The trial court must employ a two-step process when determining if prior bad acts should be admissible. First, the offered evidence must be relevant to a material issue in the case. State v. Jones, 2002 SD 153, ¶ 10, 654 N.W.2d 817, 819. Second, the trial court must determine “[w]hether the probative value of the evidence is substantially outweighed by its prejudicial effect.” Id.; SDCL 19-12-3 (Rule 403). This balancing must be conducted on the record. State v. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81.

[¶ 15.] The trial court did not conduct an on the record balancing of the offered evidence’s probative value against its prejudicial effect. However, this evidence can still be admitted, not as “other acts” evidence, but as res gestae evidence. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130. Other bad acts evidence is admissible “where such evidence is ‘so blended or connected’ with the one on trial ... that proof of one incident involves the other[s]; or explains the circumstances; or tends logically to prove any element of the crime charged.” Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81 (quoting Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130). Moreover, “evidence of uncharged criminal activity is not considered other crimes evidence if it arose out of the same transaction or series of transactions as the charged offense.” Id. Here, Owen’s statements regarding the potential sale or trade of marijuana for money or methamphet-amines is not “other acts” evidence, but res gestae evidence as it “arose out of the same transaction or series of transactions as the charged offense.” See id.

[¶ 16.] In Goodroad, the trial court admitted criminal activities that occurred during the month leading up to the charged crime as res gestae evidence. 1997 SD 46, ¶ 11, 563 N.W.2d at 130. Here, the testimony regarding marijuana use, potential sale and/or trade for other drugs and the “theft” of marijuana occurred in a short amount of time before Keeble’s murder. The potential sale of marijuana and its subsequent theft provides a potential motive for Owen’s actions. The use of the marijuana and its theft “explains the circumstances” around Kee-ble’s murder and is properly admitted res gestae evidence.

[¶ 17.] At oral argument, the question arose whether the evidence should be admitted when no FRE 403 (SDCL 19-12-5) balancing was conducted on the record. There are two reasons why the evidence is still admissible, despite the absence of an on-record 403 balancing. First, our line of precedent that requires a balancing test to be conducted on the record refers to “other acts” evidence. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; State v. Steele, 510 N.W.2d 661, 667 (S.D.1994) (citing State v. Klein, 444 N.W.2d 16, 18 (S.D.1989)). Res gestae evidence, unlike other acts evidence, does not require a 403 balancing to be conducted on the record in order for it to be admissible. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130; see also State v. Pasek, 2004 SD 132, ¶ 20, 691 N.W.2d 301, 308-09 (admitting res gestae evidence with no balancing mentioned on the record). Second, the balancing test of 403 does apply to the evidence, but there is nothing in our past precedent that requires the 403 balancing test to be conducted on the record. See Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81 (affirming the admissibility of res ges-tae evidence despite the lack of an on record balancing test).

[¶ 18.] Owen also argues that Price’s testimony that Owen “absconded” after the murder was so prejudicial that the court erred when it denied his motion for a mistrial. Price testified that during the course of his murder investigation he heard that Owen was a “possible absconder.” The trial court struck the reference from the record once Owen objected and denied his motion for a mistrial.

[¶ 19.] In order for an abuse of discretion to occur from the. denial of a mistrial, the defendant must show actual prejudice. State v. Anderson, 2000 SD 45, ¶ 36, 608 N.W.2d 644, 655. Once Price inadvertently referred to Owen as a “possible absconder,” the trial court struck it from the record and admonished the jury to disregard the statement. Trial courts have considerable discretion in determining the prejudicial effect of an excluded statement. Id. Here, the trial court determined that striking the statement from the record and admonishing the jury remedied the statement. Given the other evidence of Owen’s guilt, he has not shown how he was prejudiced from this inadvertent comment when it was struck from the record and the jury was told to disregard it.

[¶ 20.] 2. Whether the trial court erred in denying the suppression of Owen’s statements to law enforcement.

[¶ 21.] “Although there are often subsidiary factual questions deserving deference, the voluntariness of a con-fession is ultimately a legal question.” Holman, 2006 SD 82, ¶ 13, 721 N.W.2d at 456 (quoting Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d at 30). “This Court reviews the entire record and makes an independent determination of voluntariness” by examining the totality of the circumstances. Id. In determining whether statements made to law enforcement are voluntary, we first look to the questioning officer’s conduct. State v. Wright, 2004 SD 50, ¶ 7, 679 N.W.2d 466, 468. Next, we look at the defendant’s capacity to resist pressure created by the law enforcement officers. Id. ¶ 8. When analyzing the defendant’s capacity to resist pressures, we look at a variety of factors such as:

the defendant’s age; level of education and intelligence; the presence or absence of any advice to the defendant on constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; the use of psychological pressure or physical punishment, such as deprivation of food or sleep; and the defendant’s prior experience with law enforcement officers and the courts. Finally, deception or misrepresentation by the officer receiving the statement may also be factors for the trial court to consider; however, the police may use some psychological tactics in interrogating a suspect.

Holman, 2006 SD 82, ¶ 15, 721 N.W.2d at 456-57. The trial court applied these factors after conducting an evidentiary hearing and denied the motion.

[¶ 22.] Owen claims his confession was involuntary because he was being held in a jail cell on a murder charge and was questioned for three to four and one-half hours with only a few short breaks. Owen also claims law enforcement used the availability of tobacco in a coercive manner since he offered to tell the truth if given a cigarette, but he only did so after he requested a smoke earlier.

[¶ 23.] First, the behavior of the officer questioning Owen does not indicate any overbearing or coercive behavior. The length of questioning was not particularly long. He was arrested late the night before, held overnight and questioned at 8 a.m. for three to four and one-half hours. Owen claims the police essentially bribed him to confess by offering tobacco. However, Owen offered to tell the truth if allowed to smoke. Price did not initiate the deal and cigarettes were not used as bribes or rewards for confessing.

[¶ 24.] Next, Owen’s age and experience with the law weigh in favor of finding voluntariness. He was thirty-two years old and had a fourteen-page rap sheet that revealed extensive experience with the criminal justice system. The court partially based its decision on Owen’s numerous letters and pro se motions that demonstrated he was cognizant of his rights and able to exercise them. Owen was not subjected to any sleep, food or drink deprivation to induce confession. Owen claims he could not voluntarily confess because he was under the influence of alcohol and drugs, but the record reflects he slept well the night before, was alert and did not show any signs of impairment during questioning.

[¶ 25.] Owen claims his confession was involuntary because he was questioned before he was Mirandized, and he did not waive his Miranda rights. However, the record reflects Price asked no incriminating questions before reading Owen his Miranda rights, but merely introduced himself as a state agent investigating the case and told Owen he wished to speak to him. Before Price began questioning Owen, he gave the Miranda warnings and the record reflects Owen waived his rights. Price testified that he Mirandized Owen two different times during the interview. Price stated Owen appeared to understand his rights and waived his rights both times. Under the totality of the circumstances, there is no evidence on the record that Owen’s confession was involuntary because he was not Mirandized.

[¶ 26.] Owen’s next argument is that the confession should be suppressed because law enforcement delayed bringing him in front of a magistrate. SDCL 23A-4-1 provides in relevant part, “A law enforcement officer shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate.” See State v. Hintz, 318 N.W.2d 915, 917 (S.D.1982). The trial court found the morning interview of three to four and one-half hours was not an unnecessary delay.

[¶ 27.] The Alaska Supreme Court considered a case similar to this case under its Alaska Criminal Rule 5(a). In Riney v. State, the court found a two-hour delay for “reasonable post-arrest interrogation” does not constitute unnecessary delay. 935 P.2d 828, 837 (Alaska App.1997). See United States v. Daniels, 64 F.3d 311, 313—14 (7thCir.1995); People v. Turner, 8 Cal.4th 137, 32 Cal.Rptr.2d 762, 878 P.2d 521, 541-42 (1994), cert denied, 514 U.S. 1068, 115 S.Ct. 1702, 131 L.Ed.2d 564 (1995); Peterson v. State, 653 N.E.2d 1022, 1025 (Ind.Ct.App.1995); State v. Chapman, 343 N.C. 495, 471 S.E.2d 354, 356 (1996); State v. Littlejohn, 340 N.C. 750, 459 S.E.2d 629, 633-34 (1995). The court went on to explain that the post-arrest interrogation was permissible only if the officers were not using it for “the purpose of gathering additional evidence to justify the arrest.” 935 P.2d at 834.

[¶ 28.] In Riney, the defendant argued, as does Owen, that the Supreme Court decisions in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), require suppression of the statements to law enforcement if there was an unreasonable delay which induced an involuntary confession. See Riney, 935 P.2d at 835-36. However, most courts have decided that unnecessary delay does not automatically require suppression of the defendant’s confession. Id. at 836. Most jurisdictions conclude that unnecessary delay is only one factor to consider in determining whether the statements were voluntary. See id.

[¶ 29.] Furthermore, once Miranda warnings have been given “it is generally difficult for defendants to show that their post-arrest statements were tainted by the lack of a prompt initial appearance.” Id. at 837. As discussed above, Owen was given Miranda warnings and waived his rights twice. He was informed of his right to remain silent, yet chose to speak with Price. In addition, there is no evidence in the record that Owen could have been brought before a magistrate any earlier than his 1:30 p.m. hearing. Given the record, the defendant cannot show he was subject to an unnecessary delay or that he was prejudiced because his statements became involuntary by an unnecessary delay.

[¶ 30.] Owen’s final argument in support of suppressing his confession is that his Sixth Amendment right to counsel was violated by questioning him after he had been formally charged. However, once Miranda rights are given, the right to counsel is waived if the defendant does not request counsel. Patterson v. Illinois, 487 U.S. 285, 290-94, 108 S.Ct. 2389, 2394-96, 101 L.Ed.2d 261 (1988). Failure to unambiguously request an attorney to be present during questioning means Owen waived his right to counsel.

[¶ 31.] 3. Whether the trial court erred by denying Owen’s requested self-defense instruction.

[¶ 32.] Owen claims it was error for the trial court to deny his self-defense jury instruction. We review the denial of a jury instruction for abuse of discretion. State v. Motzko, 2006 SD 13, ¶ 19, 710 N.W.2d 483, 440. Criminal defendants are entitled to an instruction on their theory of the case when evidence exists to support that theory. State v. Bruder, 2004 SD 12, ¶ 8, 676 N.W.2d 112, 115. However, if there is no evidence to support their theory of the case, then a trial court may deny the proposed instruction. State v. Bogenreif, 465 N.W.2d 777, 781 (S.D.1991).

[¶ 33.] In this case, the record is devoid of any evidence which supports a self-defense jury instruction. Owen claims that the fact Keeble stole his marijuana and then continued to “maintain! ] a hostile attitude toward” him is evidence the property was taken by force and justifies the instruction. However, theft of property is not justification for self-defense. There is no evidence anyone threatened Owen or attacked him first. In fact, the evidence shows Owen hid the knife from Keeble and stabbed him by surprise. Under this record, Owen has not demonstrated the trial court abused its discretion by denying his self-defense jury instruction.

[¶ 34.] 4. Whether there was sufficient evidence to prove first degree murder.

[¶ 35.] In reviewing an insufficiency of evidence claim, we review

whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.

State v. Mesa, 2004 SD 68, ¶ 9, 681 N.W.2d 84, 87. Owen claims there is no evidence to support the premeditation aspect of first degree murder.

[¶ 36.] Premeditation is defined as,

an intention, purpose, or determination to kill or take the life of the person killed, distinctly formed and existing in the mind of the perpetrator before committing the act resulting in the death of the person killed. A premeditated design to effect the death sufficient to constitute murder may be formed instantly before committing the act.

SDCL 22-16-5 (emphasis added). When determining if premeditation exists we consider the following factors: 1) the use of a lethal weapon; 2) the manner and nature of the killing; 3) the defendant’s actions before and after the murder; and 4) whether there was provocation. State v. Helmer, 1996 SD 31, ¶ 38, 545 N.W.2d 471, 477.

[¶ 37.] In this case, Owen used a lethal weapon, a sharp fillet knife, to repeatedly stab his victim in the throat, head and face. He hid the knife to prevent anyone from seeing his intention and stabbed Keeble for allegedly stealing his marijuana. Owen urges us to find that there was provocation or even self-defense involved because Keeble continued to glare at him after Owen accused him of stealing his marijuana. However, this is neither provocation nor an act entitling Owen to use deadly force in self-defense. The statute provides that a murder designed to kill is still murder even if “the perpetrator was in a state of anger or voluntary intoxication at the time.” SDCL 22-16-6.

[¶ 38.] Finally, Owen stated he did not go to the home with the intent to kill. This is of little relevance. Under the statute, Owen can form the required premeditation the instant before the act. His statements that he was going to teach the group a lesson, he intended to “f* * * one of them up” and the fact that he hid the knife from Keeble in an effort to attack him by surprise are more telling to his immediate state of mind. Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to support the jury’s guilty of first degree murder verdict.

[¶ 39.] 5. Whether the State had jurisdiction over Owen’s crimes.

[¶ 40.] The federal government or Indian tribe, not the State, has jurisdiction over crimes committed in Indian Country. Bruguier v. Class, 1999 SD 122, ¶ 14, 599 N.W.2d 364, 370 (citing Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527, 118 S.Ct. 948, 952, 140 L.Ed.2d 30 n. 1 (1998)). Indian Country is defined as

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C.A. § 1151. This case does not involve allotted land and the Lake Traverse Indian Reservation, which once included the town of Peever, was terminated in 1891. DeCoteau v. Dist. Court, 420 U.S. 425, 445, 95 S.Ct. 1082, 1093, 43 L.Ed.2d 300, 314 (1975). However, Owen claims the land where the crime was committed is a dependent Indian community.

[¶ 41.] In Venetie, the United States Supreme Court held that land owned in fee simple by the Venetie Tribe was not a dependent Indian community. 522 U.S. at 532, 118 S.Ct. at 955, 140 L.Ed.2d 30. In that case, the Ninth Circuit applied a six-factor balancing test similar to the one advocated by Owen. 522 U.S. at 531 n. 7, 118 S.Ct. at 955 n. 7, 140 L.Ed.2d 30. The Supreme Court rejected the use of a balancing test and instead held the lands must satisfy two requirements. Id. at 527, 118 S.Ct. at 953, 140 L.Ed.2d 30. “[Fjirst, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence.” Id.

[¶ 42.] The land upon which the Sisse-ton-Wahpeton Housing Authority (Authority) built the homes is owned by the City of Peever and leased to the Authority. The land cannot meet the federal set-aside requirement. The federal government did not set aside this land for use as Indian land.

[¶ 43.] In addition, the land is not under federal superintendence. The Roberts County Sheriffs office provides police protection. Peever Volunteer Fire Department, which provides fire protection services, is not funded by the Sisseton-Wahpeton Tribe. There is no evidence on the record that the Housing development is under federal superintendence or a federal set-aside. This land is not a dependent Indian community within the meaning of 18 USC § 1151(b); therefore, the State has jurisdiction. See Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 2312, 150 L.Ed.2d 398 (2001) (“[s]tates have criminal jurisdiction over reservation Indians for crimes committed ... off the reservation”) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149, 93 S.Ct. 1267, 1270-71, 36 L.Ed.2d 114 (1973)).

[¶ 44.] 6. Whether there was a Bat-son violation in the State’s exercise of its peremptory challenges.

[¶ 45.] When the State eliminates potential jurors on the basis of race, it violates the defendant’s right to equal protection. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). In order to sustain a Batson challenge, a defendant must first establish a prima facie case of purposeful discrimination by showing he is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant’s race from the potential jury candidates. Id. at 94-95, 106 S.Ct. at 1722. If the prima facie case is established, an inference of purposeful discrimination arises. Id. The burden then shifts to the State to provide a race-neutral explanation for the use of its peremptory challenges. Id. at 97, 106 S.Ct. at 1723.

[¶ 46.] The State concedes that Owen established a prima facie case. The State offered explanations for its use of its peremptory challenges, which the trial court accepted. However,- Owen argues the State’s race-neutral explanations were merely pretextual rationalizations for eliminating Native Americans from the venire. We review the trial courts factual determinations for clear error. Martin, 2004 SD 82, ¶ 16, 683 N.W.2d at 405 (quoting State v. Farmer, 407 N.W.2d 821, 823 (S.D.1987)).

[¶ 47.] The State removed seven out of the potential eleven Native American jury members. The record reflects that the' State had a race-neutral explanation for each peremptory strike used. See United States v. Maxwell, 473 F.3d 868, 873 (8th Cir.2007). The defendant has not demonstrated clear error and the record supports the trial court’s ruling.

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

      . "The balancing test of SDCL 19-12-3 (Rule 403) applies regardless, and the statement is subject to the requirement of the other rules of evidence.” State v. Engesser, 2003 SD 47, ¶ 42, 661 N.W.2d 739, 753 (quoting John W. Larson, South Dakota Evidence § 804.6, p. 703 (1991)). See also State v. Luna, 378 N.W.2d 229, 232 (S.D.1985) (finding the rules of evidence are "the criteria for admissibility of evidence”) (citing SDCL 19-9-1).

      . FRE 403 (SDCL 19-12-3) provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Therefore, any evidence may be excluded if the probative value is substantially outweighed by the prejudicial effect. In any evidentiary ruling the probative value can be considered and we do not require the trial court to conduct the balancing on the record.

      . The audio recording of Owen’s interview with Price indicates Price read Owen his rights and then stated, "Do you understand these rights and do you wish to waive these rights and talk to me at this time?” Owen alleges he only responded audibly to the second question and did not verbally indicate he “understood these rights.” However, Price testified that Owen shook his head yes and verbally indicated he understood the rights.

      . Alaska Criminal Rule 5(a), in relevant part, provides, "the arrested person shall be taken before the nearest available judge or magistrate without unnecessary delay.”

      . The opinion lists the following states that have agreed that unnecessary delay is only one factor to be considered in deciding whether the arrestee’s statements were voluntary: Clay v. State, 318 Ark. 122, 883 S.W.2d 822, 827-29 (1994); Thorson v. State, 653 So.2d 876, 887 (Miss.1994); State v. Tucker, 137 N.J. 259, 645 A.2d 111, 117-19 (1994), cert denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995); State v. Huddleston, 924 S.W.2d 666, 670-71 (Tenn.1996); Cantu v. State, 842 S.W.2d 667, 679 (Tex.Crim.App. 1992), cert denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731, reh’g denied, 509 U.S. 941, 114 S.Ct. 16, 125 L.Ed.2d 768 (1993). See also Williams v. State, 375 Md. 404, 825 A.2d 1078, 1092 (2003) (citing Romuldo P. Eclavea, Annotation, Admissibility of confession or other statement made by defendant as affected by delay in arraignment — modem state cases, 28 A.L.R.4th 1121 (1984), updated July, 2006, § 6) (noting that the majority of state courts consider delay one factor in determining voluntariness).

      . Homicide is murder in the first degree:
      (1) If perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, including an unborn child;
      or
      (2) If committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.
      Homicide is also murder in the first degree if committed by a person who perpetrated, or who attempted to perpetrate, any arson, rape, robbery, burglary, kidnapping or unlawful throwing, placing or discharging of a destructive device or explosive and who subsequently effects the death of any victim of such crime to prevent detection or prosecution of the crime.
      SDCL 22-16-4.

      . The Court noted that the use of the balancing test "reduced the federal set-aside and superintendence requirements to mere considerations.” Venetie, 522 U.S. at 531 n. 7, 118 S.Ct. at 955 n. 7, 140 L.Ed.2d 30.

      . 1. M.Q. — State’s attorney had done mental illness commitments on her twice in the past.
      2. Q.K. — Owen told DCI agents that he was going to go see him. State’s attorney did not feel it was appropriate to have a juror whose name may come up in the testimony.
      3. B.R. — worked with the prosecutor for many years, but the end of the work relationship was "not amicable.”
      4. J.A. — related to Owen by marriage and a good friend of the victim's mother.
      5. B.U.A. — State has prosecuted her and her husband for a combined total of five driving under the influence charges.
      6. A.W. — two of her daughters were recently prosecuted by State on drug charges, a third daughter was in prison and she worked at the hospital where the victim was taken.
      7. D.B. — failed to disclose information on his juror questionnaire. He applied for employment with the Sheriffs office and when denied employment threatened to sue on racial grounds.

      . The Maxwell decision was filed after oral arguments were heard in this case. In Maxwell, the District Court for the Eastern District of Missouri found there was no Batson
        violation where the prosecution executed its peremptory challenges to strike three of the five African-American males from the potential jury pool. 473 F.3d at 869. The district court found the excuses were race-neutral, albeit "lame.” Id. at 870. Noting “that the findings underlying a district court’s Batson analysis depend largely on credibility evaluations,” Id. at 871, the Eighth Circuit "deferred] to the district court's discretion to permit the strikes to stand” and affirmed. Id. at 873 (Bright, J., concurring in result).


author: PER CURIAM.

text:
    2007 SD 24
    STATE of South Dakota, Plaintiff and Appellee, v. Wambdi Sapa SEABOY, Defendant and Appellant.
    No. 24029.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided March 7, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Gregory J. Garvey, Agency Village, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Wambdi Seaboy appeals the circuit court’s denial of his motion to dismiss for failure to timely bring his case to trial under our 180-day rule. We reverse.

[¶2.] Seaboy was charged with first-degree burglary and simple assault for entering a house and “punching] the victim in the face while he was sleeping.” On July 12, 2005, Seaboy made his initial appearance. On July 26, 2005, he appeared before a magistrate judge for a preliminary hearing represented by his court-appointed attorney Kerry Cameron. Sea-boy was bound over for trial, and the magistrate judge requested attorney Cameron to schedule an arraignment with the clerk’s office. On August 24, 2005, Seaboy appeared for the scheduled arraignment in circuit court with a new attorney, Gregory Garvey. There is no record of a motion to withdraw by Cameron or notice of appearance by Garvey. All that is reflected is that Seaboy appeared for his scheduled arraignment with new counsel.

[¶3.] On December 22, 2005, Seaboy filed motions contesting the circuit court’s jurisdiction and requesting a furlough to attend alcohol treatment. On that same day, Seaboy indicated he would like to withdraw the motion contesting jurisdiction. An order noting the withdrawal of the jurisdictional challenge and denying the furlough was filed seven days later on December 29, 2005.

[¶ 4.] On January 13, 2006, Seaboy moved to dismiss contending that he would not be brought to trial within 180-days of his first appearance. At the hearing on the motion, the State argued that through informal discussion Seaboy “passed” on a trial date in December. Seaboy’s counsel disputed this argument. The State also argued that court calendar congestion was good cause for the delay. The circuit court denied the motion for different reasons and entered conforming findings of fact. The circuit court found that good cause existed for a delay of twenty-nine days (the time between the preliminary hearing and arraignment) as a result of Seaboy’s change of counsel. The court also found that good cause existed for a delay of seven days as a result of Seaboy’s pretrial motions.

[¶ 5.] Seaboy filed two subsequent motions. On February 6, 2006, three days before trial, Seaboy filed a motion to sever. On the day of trial, Seaboy filed a motion to excise the audio from a videotape being offered as an exhibit. Trial commenced on February 9, 2006. At the start of the trial, Seaboy’s counsel asked the court to reconsider its 180-day rule decision, arguing there was no showing that Seaboy’s change of counsel delayed this matter as the scheduled arraignment was conducted with new counsel. The request to reconsider was not granted. Seaboy was ultimately convicted, and he now appeals claiming a violation of the 180-day rule.

[¶ 6.] “The 180-day rule requires a defendant to be brought to trial within 180-days of his first appearance before a judicial officer on an indictment, information or complaint.” State v. Cottrill, 2003 SD 38, ¶ 5, 660 N.W.2d 624, 627 (citations omitted). “A [circuit] court’s findings of fact on the issue of the 180-day rule are reviewed using the clearly erroneous rule.” Id. ¶ 6 (citing State v. Pellegrino, 1998 SD 39, ¶ 23, 577 N.W.2d 590, 599). “However, this Court reviews the determination of whether the 180 day period has expired as well as what constitutes good cause for delay under a de novo standard.” Id. (citation omitted).

[¶ 7.] SDCL 23A-44-5.1, commonly referred to as the 180-day rule, provides in relevant part:

(1) Every person indicted, informed, or complained against for any offense shall be brought to trial within one hundred eighty days, and such time shall be computed as provided in this section.
(2) Such one-hundred-eighty-day period shall commence to run from the date the defendant has first appeared before a judicial officer on an indictment, information or complaint.
(4) The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions brought under § 23A-8-3; motions for a change of venue; and the time consumed in the trial of other charges against the defendant;
* ⅜ *
(f) Other periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause. A motion for good cause need not be made within the one-hundred-eighty-day period.
(5) If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the defendant shall be entitled to a dismissal with prejudice of the offense charged and any other offense required by law to be joined with the offense charged.

(Emphasis added.)

[¶ 8.] Seaboy first appeared on July 12, 2005, and trial commenced on February 9, 2006. Therefore, not counting exclusions, the trial did not commence until 212 days after Seaboy’s first appear-anee. However, two types of exclusions in this rule are at issue. “[T]he 180-day rule requires exclusion of delay which is occasioned by defendant’s conduct, such as delay caused by pretrial motions and certain continuances.” State v. Webb, 539 N.W.2d 92, 95 (S.D.1995). Additionally, “the period of delay from the time of the attorney’s motion to withdraw until the time when alternate counsel is retained or appointed (or the defendant chooses to proceed pro se) is to be excluded from the computation of the 180-day rule.” Id.

[¶ 9.] The first type of exclusion involves “the time from filing until final disposition of pretrial motions of the defendant.” SDCL 23A-44-5.1(4)(a) (emphasis added). Seaboy’s December 22, 2005 motions contesting jurisdiction and requesting a furlough were denied by order entered on December 29, 2005. Therefore, there is no dispute that Sea-boy’s motions required an exclusion of seven days.

[¶ 10.] Seaboy filed two additional motions: a motion to sever and a motion to excise the audio from a videotape. Sea-boy’s motion to sever was filed on February 6, 2006, three days before trial. That motion was considered at a hearing the same day; however, no written order was entered disposing of the motion until trial on February 9, 2006. Therefore, three additional days were excluded. However, because Seaboy’s motion to excise the audio from a videotape was filed on the day of trial, that motion caused no delay, and it was not relevant to the 180-day calculation.

[¶ 11.] The second type of exclusion involved the period between the preliminary hearing and arraignment during which Seaboy obtained substitute counsel. In its findings of fact, the circuit court indicated that “Defendant changed attorneys from his court appointed counsel to the Tribal Public Defender between the time of the preliminary hearing and Defendant’s arraignment on August 24, 2005.” The circuit court additionally found that “good cause existfed] for delay in the amount of twenty-nine days between the preliminary hearing and the arraignment due to the Defendant’s change in counsel.”

[¶ 12.] However, unlike our cases that have excluded time to obtain substitute counsel, in this case there was no motion to withdraw or any showing that Seaboy’s change of counsel caused a delay. Our basis for tolling the 180-day period in our prior cases was that the delay resulting from the change of counsel was caused by the defendant’s conduct. See, e.g., Hays v. Weber, 2002 SD 59, ¶ 18, 645 N.W.2d 591, 598 (holding good cause for an exclusion because the defendant refused to communicate with counsel and the delay was “directly attributable” to the defendant); Sparks, 1999 SD 115, ¶ 6, 600 N.W.2d at 553 (stating time from defense counsel’s motion to withdraw until alternate counsel was retained or appointed was excluded under the 180-day rule because the defendant’s substitute counsel was out of state with a pending pro hac vice admission, and therefore, the delay “was attributable” to the defendant); Webb, 539 N.W.2d at 95 (holding defendant’s failure to maintain contact with his counsel, thus necessitating a motion to withdraw, was good cause for delay existing until new counsel was appointed).

[¶ 13.] Significantly, at the hearing on the motion to dismiss in this case, the State did not argue that the change of counsel caused any delay. On the contrary, the State only relied on court calendar congestion. This argument has been unequivocally rejected by this Court absent a showing of extraordinary circumstances. State v. Ven Osdel, 462 N.W.2d 890, 891 (S.D.1990); State v. Hoffman, 409 N.W.2d 373, 375 (S.D.1987) (holding delay caused by a congested docket is generally attributable to the prosecution). And, no showing of extraordinary circumstances was made here.

[¶ 14.] It appears that the circuit court found good cause for a twenty-nine day delay sua sponte simply because Seaboy changed attorneys. However, there is no finding or indication in the record why or when original counsel withdrew and new counsel appeared. Moreover, the State has not argued that any part of the twenty-nine days can be attributed to Seaboy’s substitution of counsel. Therefore, there is no evidence supporting a finding of good cause for delay for the period between the preliminary hearing and the arraignment. If anything, it appears that defense counsel was substituted and the matter proceeded to the scheduled arraignment without any delay. Therefore, the circuit court’s finding that good cause existed for the twenty-nine day delay is unsupported by the evidence and is clearly erroneous.

[¶ 15.] Considering the three allowable exclusions, the relevant timeline is as follows:

July 12, 2005 — first appearance
December 22 — defense motions filed (163rd day)
December 29 — defense motions disposed (7 days tolled)
February 6, 2006 — defense motion filed (202nd day)
February 9 — defense motion disposed (3 days tolled)
February 9 — trial (202nd day)

Because Seaboy was not brought to trial within 180 days of his initial appearance, the motion to dismiss should have been granted.

[¶ 16.] Reversed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . There were no findings concerning this dispute and this argument has not been advanced on appeal.

      . SDCL 23A-8-3 (Rule 12(b)) governs defenses and objections that must be raised prior to trial.

      . SDCL 23A-41-1 governs the computation of time in criminal proceedings. That statute provides that the first day of the designated act shall not be included in the computation and the last day shall be included unless it is a Saturday, Sunday or legal holiday.

      . It is settled law that for final disposition, "[o]rders are required to be in writing because the trial court may change its ruling before the order is signed and entered.” State v. Sparks, 1999 SD 115, ¶ 7, 600 N.W.2d 550, 554 (recognizing oral rulings do not finally dispose of motions under the 180-day rule).

      . The Slate concedes the point in its brief:
      There is nothing in the record that indicates when Defendant requested a different attorney nor is there any indication in the record when Garvey took over as Defendant’s counsel. There is also nothing in the record that indicates whether the change of counsel delayed the arraignment. The Roberts County State's Attorney did not produce any evidence to show that Defendant's change of counsel delayed the arraignment and the trial court’s Findings did not cite any support in the record for the finding that the change of counsel caused the arraignment to be delayed.
      Brief for Appellee at 9, State v. Seaboy, 2007 SD 24, 729 N.W.2d 370.


author: MEIERHENRY, Justice (on reassignment).

text:
    2007 SD 26
    Cecil JOHNSON, Special Administrator of the Estate of Virginia Johnson, Claimant and Appellant, v. POWDER RIVER TRANSPORTATION, Employer and Appellee, and Indemnity Insurance Company, Insurer and Appellee.
    No. 23897.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2006.
    Reassigned Oct. 23, 2006.
    Decided March 7, 2007.
    James D. Leach, Rapid City, South Dakota, Attorney for appellant.
    Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for appellees.
   MEIERHENRY, Justice (on reassignment).

[¶ 1.] This workers’ compensation case is before the Court for the second time and involves the calculation of benefits as related to cost-of-living increases and social security old-age benefits. We previously affirmed the Department of Labor’s determination that Virginia Johnson was entitled to total permanent disability workers’ compensation benefits in Johnson v. Powder River Transp., 2002 SD 23, 640 N.W.2d 739. Subsequent to the first appeal, Johnson sought and received Department approval of a lump sum award for attorney fees as allowed under SDCL 62-7-6. By statute, the approved partial lump sum payment reduced Johnson’s weekly benefit amount. Id. When Johnson turned sixty-five and began to receive social security old-age benefits, her weekly benefit amount was reduced further by applying the formula set forth in SDCL 62-4-7. Johnson claims that the Department erred in the way it calculated the offset. We review matters of law de novo. Anderson v. City of Tea, 2006 SD 112, ¶ 5, 726 N.W.2d 595, 597.

[¶2.] By statute, an employee’s total disability compensation is recalculated when the employee begins to draw social security old-age benefits. SDCL 62-4-7. The recalculated disability compensation is arrived at by multiplying 150% times the employee’s payable compensation minus the amount of the social security old-age benefits. SDCL 62-4-7. The statute provides as follows:

In case of total disability as defined in subdivision 62-4-6(23), compensation shall be paid at the rate provided by § 624-3 for life with an annual increase in the amount of the benefit allowance for each year commencing on the July first that is at least twelve months following the date on which the benefit was first payable equal to one hundred percent of the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the United States Department of Labor for the prior calendar year, not to exceed a three percent increase compounded annually.
For injuries occurring on or after July 1, 1993, if an employee is entitled to compensation under this section and is also receiving old-age insurance benefits under section 202 of the Social Security Act (42 U.S.C., § 402), the compensation payable shall be a sum equal to one hundred fifty percent of the compensation payable under § 62-4-7 less the old-age insurance benefit under § 202 of the Social Security Act (42 U.S.C., § 402). However, benefits payable by the employer may not exceed the amount payable pursuant to § 62-4-7. This section does not apply to any person who is entitled to old-age insurance benefits at the time of the injury.

SDCL 62-4-7 (emphasis added).

[¶ 3.] The dispute here centers on how to apply the formula to calculate the social security offset. The parties agree on the amounts involved in the calculation. Johnson’s social security old-age benefit at age sixty-five was $114.32. Her disability entitled her to a weekly benefit amount of $215.45. In other words, had Johnson not received a lump sum payment for attorney fees, she would have received a $215.45 weekly benefit at age sixty-five. Because she had previously opted for the partial lump sum, her entitlement was reduced proportionately by $69.23 leaving her at age sixty-five with a reduced weekly benefit amount of $146.22.

[¶4.] The Department’s calculation of the formula used the reduced benefit amount of $146.22 multiplied by 150% less social security of $114.32 for a net benefit of $105.01 ($146.22 X 150%-$114.32 = $105.01). Johnson claims that the formula should use her unreduced benefit amount of $215.45 multiplied by 150% less social security of $114.32 less the lump sum ratio reduction of $69.23 for a net benefit of $139.63 ($215.45 X 150%-$114.32-$69.23 = $139.63).

[¶ 5.] In order to resolve this issue, we look at the language of the statute. The statute sets forth the compensation formula for the social security old-age offset as follows: “the compensation payable shall be a sum equal to one hundred fifty percent of the compensation payable under § 62-4-7 less the old-age insurance benefit under § 202 of the Social Security Act (42 U.S.C. § 402).” SDCL 624-7 (emphasis added). Specifically, we have to determine what is meant by the phrase “compensation payable under § 624-7.” Does it mean compensation payable after deducting the lump sum to pay attorney fees, as the Department has interpreted it, or does it mean compensation payable before deducting the lump sum, as Johnson urges?

[¶ 6.] The language of SDCL 62-4-7 supports Johnson’s interpretation. The statute directs that benefits are calculated on “compensation payable under § 62-4-7.” “Compensation payable under § 62-4-7” is defined as “compensation ... at the rate provided by § 62-4-3.” SDCL 62-4-7. The rate provided in section 62-4-3 is “[t]he amount of [] total disability compensation paid to an employee for an injury....” Notably, the rate in section 62-4-3 does not include reductions for partial lump sum payments. Reductions for partial lump sum payments appear in SDCL 62-7-6. Consequently, Johnson’s compensation “at the rate provided in § 62-4-3” is an unreduced weekly benefit amount of $215.45. To arrive at a different conclusion would require reading words into the statute that are not there. That is not the role of the judiciary.

[¶ 7.] We dealt with a similar issue in Ft. Pierre Quality Const., Inc. v. Ackley, 2004 SD 38, ¶ 11, 677 N.W.2d 593, 596. The question in Ackley involved whether the social security old-age benefit offset applied to lump sum calculations in SDCL 62-7-6. Id. ¶ 3. We determined it did not because of the language of the statute and the legislative history. Id. ¶ 11. First, we noted that the plain language of the statute made no reference to the social security old-age offset provision. Id. ¶ 9. Additionally, recognizing some ambiguity, we examined the law’s legislative history and determined that legislative amendments deleted a general reference to SDCL 62-4-7 but “add[ed] specific language directing the Department to solely consider the cost-of-living increase found in the statute’s first paragraph.” Id. ¶¶ 10-11. Since the law only declared that a cost-of-living increase applied to “the remaining weekly benefit” after the lump sum reduction, we concluded the Legislature did not intend to include old-age benefits in the lump sum calculation. Id. ¶ 11.

[¶ 8.] Like the situation in Ackley, SDCL 62-4-7 does not specifically indicate that the compensation against which social security is.offset means compensation reduced by partial lump sum payments. However, here there is no ambiguity and we need not look beyond the language of the statutes. Thus, we hold that pursuant to the language of the statutes, the social security old-age offset is calculated on the full benefits available for total disability.

[¶ 9.] We reverse the holding of the Department and circuit court and remand for a recalculation of benefits consistent with this opinion.

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

[¶ 11.] MYREN, Circuit Judge, dissents without a writing.

[¶ 12.] MYREN, Circuit Judge, sitting for SABERS, Justice, disqualified.


author: KONENKAMP, Justice.

text:
    2007 SD 25
    Ginger VOLLMER, Appellant, v. WAL-MART STORE, INC. and National Union Fire Insurance of Pittsburgh, PA, Appellees.
    No. 23948.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2006.
    Decided March 7, 2007.

      Michael J. Simpson of Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for appellant.
    Comet H. Haraldson of Woods, Fuller, Shultz and Smith, Sioux Falls, South Dakota, Attorneys for appellee.
   KONENKAMP, Justice.

[¶ 1.] Ginger Vollmer appeals the circuit court’s decision affirming the ruling by the Department of Labor dismissing her workers’ compensation claim. We reverse and remand.

I.

[¶ 2.] Ginger Vollmer, a pharmacy technician, began working at Wal-Mart in 1992. By all accounts, she was an excellent employee. She was injured at work on September 1, 1999, when she crouched down beside a compact refrigerator to put away a small package of insulin vials. As she held the refrigerator door with her right hand, she reached across her body with the package in her left hand. It weighed less than sixteen ounces. She later testified that at this point she experienced severe pain and could not move her head or left arm. A co-worker assisted her. She left work to see a massage therapist, whom she had been seeing for recurrent headaches. Migraine headaches had been a longstanding problem for her.

[¶ 3.] Two days later, Vollmer visited her regular physician, Dr. Richard Beasley, an internist. She had previously seen him in April and May 1999 for headaches, fatigue, and chest wall pain. On this occasion, Dr. Beasley found no objective explanation for her condition. Nonetheless, he took her off work until September 27, 1999. She then returned to work at Wal-Mart part-time, four to five hours a day. This schedule was not set by any of her treating physicians but was based on what she thought she could physically handle. In October, she developed a “popped out” rib that caused her significant pain, and she saw Dr. Blickensderfer, a chiropractor, for treatment.

[¶ 4.] During two visits with Dr. Beasley in October 1999, Vollmer indicated that she was improving. He expected her to be back to normal by November. In November, however, her condition had only worsened. Dr. Beasley sought a consultation with Dr. Lawlor, a physiatrist and rehabilitation specialist. Dr. Lawlor diagnosed Vollmer with thoracic outlet syndrome and cervical, mechanical, and myofascial pain. Thoracic outlet compression syndrome is a “symptom complex characterized by bra-chial neuritis with or without vascular or vasomotor disturbance in the upper extremities.” Taber’s Cyclopedic Medical Dictionary, 1726 (15th ed 1985).

[¶ 5.] Beginning in December 1999, Vollmer saw Dr. Schabauer, a specialist in cardiology and vascular medicine. He found “no clear evidence of a vascular cause for her pain.” He referred her to a pain clinic in Chicago where she stayed for a week. In a letter dated March 16, 2001, one of the physicians at the Chicago clinic wrote: “Our medical assessment is bilateral shoulder myofascial pain syndrome left side greater than right, left thoracic outlet syndrome secondary to poor posture and biomechanics.” Vollmer later saw other physicians for shoulder and arm pain, which she continued to attribute to the Wal-Mart incident. During the course of her medical care over this extended period of time, Vollmer took physical therapy, massage therapy, chiropractic care, and medications to reduce her pain.

[¶ 6.] Vollmer suffered additional trauma not connected with her employment. Nine days after the injury at Wal-Mart, she was involved in a car accident that caused a neck injury. It was disputed whether her increase in pain was temporary or permanent. The medical records indicated that the accident resulted in a cervical strain escalating her previous symptoms. There was also the “popped out rib” in October, mentioned earlier. On November 8, 2000, she was involved in another automobile accident. This one she characterized as a minor bump from behind.

[¶ 7.] In May 2001, Vollmer began experiencing symptoms from Guillian-Barré Syndrome (GBS). GBS is a rare nerve disorder that causes progressive muscle weakness that sometimes results in paralysis. Vollmer eventually lost all feeling and control of her muscles and was hospitalized for a week. As a result of her acute GBS, she was unable to work at all for six months. She later testified that her GBS symptoms improved for the most part although she still experienced some pain in her extremities. This is consistent with medical opinion that GBS usually affects nerves in the extremities more severely. An EMG taken before the onset of her GBS but after the Wal-Mart incident was found to be normal. Another one taken on June 19, 2001 yielded abnormal results. This latter EMG showed that nerve responses in Vollmer’s arms were less than they should have been. Her medical records also noted ongoing residual pain from the GBS. According to her neurologist, Dr. Robert Finley, the normal course for GBS is to gradually improve over time until there are few, if any, symptoms remaining. He anticipated that Vollmer would follow a similar course. It is undisputed that the GBS was in no way related to the Wal-Mart incident.

[¶ 8.] Vollmer was discharged from Wal-Mart in March 2000. She had refused to sign a form placing her on an extended leave of absence. Thereafter, she obtained employment with Medicap Pharmacy where she continued to work four hour days. Vollmer testified that she enjoyed her work at Medicap and that they would accept her for more work hours. However, she felt that working more than four hours a day was too painful. After trying to work an extra hour one day, she had “raging” pain and could not continue. In explaining her daily routine, Vollmer testified that when she finishes work she runs errands, does household chores, and relaxes. Wal-Mart introduced a surveillance video showing Vollmer engaging in activities such as shopping, getting gas for her automobile, picking up her children, and other daily living tasks, all after her half-day at work.

[¶ 9.] Two of Vollmer’s treating physicians testified that the incident at Wal-Mart was a major contributing cause of her current medical condition. On the other hand, Dr. Michael D. Smith, an independent medical examiner hired by the employer, testified that the incident at Wal-Mart was not a major contributing cause of her injuries. He found no reason she could not return to work full time. Dr. Smith believed that Vollmer suffered from chronic myofascial pain and her subsequent complaints were not consistent with a particular traumatic event like the Wal-Mart incident.

[¶ 10.] Vollmer’s workers’ compensation claim was initially accepted and benefits were paid. A dispute later arose concerning whether the continued treatments were causally related to the Wal-Mart incident. After a hearing, the Department ruled that Vollmer failed to prove a causal connection between her injury and her employment. When the case moved to circuit court, Judge A.P. Fuller ordered that the matter be remanded to the Department for further findings on (1) causation, (2) Vollmer’s credibility, and, if necessary, (3) the nature and extent of her disability. Judge Fuller concluded that the Department’s decision was erroneous because the Administrative Law Judge (ALJ) placed undue emphasis on Dr. Smith’s independent medical examination and failed to make any determination on Vollmer’s credibility. Judge Fuller labeled as “simplistic” Dr. Smith’s axiom for analyzing causation of pain: “if you can’t name it, you can’t cut it.” Relying on this axiom, the ALJ found lack of causation because there were no objective medical findings to support Vollmer’s complaints and her condition could have been the result of her GBS or her automobile accidents.

[¶ 11.] On remand, the Department again ruled that the work related incident was not a major contributing cause of her current condition. The Department also determined that Vollmer was not a credible witness because of inconsistencies between her reported disabilities and her activities as seen in the surveillance videos. On the second appeal to circuit court, Judge James W. Anderson affirmed the Department. In her appeal to this Court, Vollmer contends that her work injury was a major contributing cause of her current condition, that she is permanently and totally disabled under the odd-lot doctrine, and that she is entitled to compensation for unpaid medical expenses.

II.

[¶ 12.] In workers’ compensation cases, our standard of review is controlled by SDCL 1-26-37. Witness credibility is a question of fact. Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (quoting Tieszen v. John Morrell & Co., 528 N.W.2d 401, 403-04 (S.D.1995)). When an issue is a question of fact, then the clearly erroneous standard applies to the agency’s findings. Id. We will reverse only when we are firmly convinced a mistake has been made. Id. (citing Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 157). Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact. Lagge v. Corsica Co-op., 2004 SD 32, ¶ 14, 677 N.W.2d 569, 573 (citation omitted). All the medical testimony in this matter was provided by deposition. When an agency makes factual determinations on the basis of documentary evidence, such as depositions, the matter is reviewed de novo. Watertown Coop. Elevator Ass’n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (citations omitted). Accordingly, we consider anew the medical evidence on causation.

III.

[¶ 13.] The primary question here is whether Vollmer’s injury at Wal-Mart was a major contributing cause of her current condition. To prevail on a workers’ compensation claim, a claimant must establish “a causal connection between [her] injury and [her] employment. That is, the injury must have its origin in the hazard to which the employment exposed the employee while doing [her] work.” Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶ 20, 653 N.W.2d 247, 252 (citation omitted) (alteration in Rawls). Employees need not prove that their employment activity was the proximate, direct, or sole cause of their injury, only that the injury arose “out of and in the course of employment.” SDCL 62 — 1—1(7). And, an injury is not “compensable unless the employment or employment related activities are a major contributing cause of the condition complained of[.]” SDCL 62-1-l(7)(a); Caldwell v. John Morrell & Co., 489 N.W.2d 353, 358 (S.D.1992) (citations omitted).

[¶ 14.] This Court has often acknowledged that in cases like these, the testimony of medical professionals is crucial in establishing that a claimant’s injury is causally related “to the injury complained of ‘because the field is one in which [laypersons] ordinarily are unqualified to express an opinion.’ ” Rawls, 2002 SD 130 ¶ 21, 653 N.W.2d at 252 (quoting Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992)). Indeed, SDCL 62-1-1(7) requires “medical evidence.” “The evidence necessary to support an award must not be speculative, but rather must be ‘precise and well supported.’ ” Horn v. Dakota Pork, 2006 SD 5, ¶ 14, 709 N.W.2d 38, 42 (citations omitted). A claimant “must establish by a preponderance of the evidence that the injury ‘arose out of the course of [her] employment and that [her] employment was a major contributing cause of [her] condition or [her] disability, impairment or need for treatment.’ ” Byrum v. Dakota Wellness Foundation, 2002 SD 141, ¶ 18, 654 N.W.2d 215, 219 (citation omitted) (alteration in Byrum). Even if there is no dispute that a claimant “suffered an initial work-related injury, that injury does not automatically establish entitlement to benefits for her current claimed condition.” Haynes v. Ford, 2004 SD 99, ¶ 17, 686 N.W.2d 657, 661 (emphasis omitted). Rather, a claimant must establish that such injury “became a major contributing cause of her current claimed condition.” Id.

IV.

[¶ 15.] Because we review de novo the medical testimony in this case, we detail here the salient medical opinions presented by both sides. Dr. Brett Lawlor, a board certified physiatrist, described Vollmer’s history: she was kneeling down at work to put some insulin back in the refrigerator and then she felt a shooting pain or sensation in her left arm. When he saw her in December 1999, her shoulder and arm symptoms had stayed mostly the same. It had improved twenty-five percent, at most. It was his impression that she did not have “a vascular but a neurogenic thoracic outlet syndrome,” so the tests that could establish a vascular thoracic outlet syndrome were not done. He said, “literally every musculoskeletal textbook that you can look in will discuss this diagnosis, how to arrive at the diagnosis, the different physical exam techniques. It is not an area, with specialists in my area, a remotely controversial diagnosis.”

[¶ 16.] Although Dr. Lawlor conceded that there was no objective evidence to explain her complaints of ongoing pain in her left arm and neck, he explained that there were semi-objective indications. He said that such indications would come from having her perform movements and if she reported pain, they would have to make “sense to me from a physiologic or anatomic standpoint.” His diagnosis for her was “neurogenic thoracic outlet syndrome and cervical, mechanical, and myofacial pain with left radicular pain.” He testified that “the diagnosis is essentially irritation of the nerves in the brachial plexus from tight muscles in the front of the neck.” He explained that “myofacial pain means muscle pain.”

[¶ 17.] Dr. Lawlor testified that the duties of a pharmacy tech include repetitive use of the upper extremities at or above the shoulder level. He believed that the injury she described was the cause of her symptoms. Her activity was “consistent with the type of activity that precipitates the injury for which she had and the symptoms for which she presented.” It was his opinion to a reasonable degree of medical probability that her thoracic outlet syndrome was a permanent condition. He said it was not uncommon for someone who carries the diagnosis of thoracic outlet syndrome to have very little in the way of objective medical findings to substantiate the diagnosis. He said that over ninety percent of patients suffering from this syndrome will not have an objective test to establish the diagnosis. He concluded that she was not malingering or overstating her symptoms.

[¶ 18.] Dr. Lawlor testified that the conclusions reached at the Rehabilitation Institute of Chicago were very similar to his own. In his deposition, he read those conclusions: “our medical assessment is bilateral shoulder myofacial pain syndrome, left side greater than right, left thoracic outlet syndrome, secondary to poor posture and biomechanics. And as I testified, she had cervical, mechanical, and myofacial pain and thoracic outlet syndrome.” He explained that Dr. Scha-bauer’s conclusion that there was not a thoracic outlet syndrome was based upon a test called the “Addison’s maneuver.” Dr. Lawlor said that Dr. Schabauer is a vascular specialist and that his diagnosis was concerning vascular, not neurogenic, thoracic outlet syndrome. Dr. Lawlor agreed with Dr. Schabauer that Vollmer did not have vascular thoracic outlet syndrome. He also agreed with the Rehabilitation Institute of Chicago that poor posture and biomechanics are contributing factors for the development of thoracic outlet syndrome.

[¶ 19.] Dr. Craig Mills, a board-certified physical medicine and rehabilitation specialist, saw Vollmer in the spring of 2002 on several occasions. He first saw her at the Black Hills Rehabilitation Hospital where she was a patient from June 26 through July 3, 2001, in connection with her GBS. He later diagnosed her with “left shoulder girdle myofacial pain syndrome.” At his deposition, he testified that he would not give her, “as a classic diagnosis,” the diagnosis of thoracic outlet syndrome. He did not feel that she had been successfully treated for her myofacial pain symptoms. He tried injections, physical therapy, and various medications. She had minimal response to these efforts. Based on his continuing work with her and considering her consistent complaints about her left shoulder and radiating pain with associated headaches, he concluded that the injury she described at work was “consistent with the citing etiology.”

[¶ 20.] Despite the automobile accidents that she was involved with, based upon his examinations, Dr. Mills testified that “I would still say that the work injury is the primary etiology.” Although he never diagnosed her with having thoracic outlet syndrome, his impression was that she “had cervico-thoracic pain in the scapular-thoracic area.” He could not identify the “actual vital mechanism over pain in the cervical-thoracic area.” He found some narrowing in the nerve roots that may be the etiology based on earlier MRI studies. In his experience with these types of patients, Dr. Mills said that they may continue working but they may have some limitations. In Vollmer’s case he said, “she appears to have significant limitations because I think about a set number of hours brings about onset of pain.” Dr. Mills never set limitations for her, however. He concluded that “her syndrome has persisted for a chronic period of time and likely will be permanent.” Dr. Mills explained that “many times there may not be objective tests substantiating” the complaints of those who suffer from myofacial pain syndrome.

[¶ 21.] Dr. Michael D. Smith, a board certified orthopedic surgeon who practices in Minneapolis, examined Vollmer on behalf of the employer. He traveled to Rapid City to perform his independent medical exam in July 2002. Ultimately, Dr. Smith concluded that it was difficult to attach any significance to either Vollmer’s motor vehicle accident or the “strain” at Wal-Mart, both of which occurred in September 1999. He said that although Vollmer described the automobile accident as extremely minor, her medical records suggested otherwise. In any event, he found no objective permanent residuals as a consequence of either the automobile accident or the Wal-Mart incident. His impression: “1. chronic pain syndrome; 2. Status post Gillain-Barré Syndrome.” Because Vollmer did not have a specific diagnosis, Dr. Smith thought it “inappropriate to assign significant permanent objective restrictions based on subjective criteria alone.” He agreed with Dr. Schabauer that there was no evidence of thoracic outlet syndrome and there was no objective evidence of orthopedic musculoskeletal injury. He found no orthopedic basis for restricting her to lighter duty work or to a thirty-hour work week. He conceded, however, that the muscle spasm and atrophy that Dr. Schabauer found would be considered objective findings.

[¶22.] Dr. Smith’s surgical practice is restricted to the operative treatment of cervical spine disorders. Two thirds of the patients he sees with head, neck, and upper extremity shoulder pain do not receive operations. Thus, the bigger portion of his practice is the non-operative evaluation and treatment of these individuals. However, he indicated that often when he finds that surgery is not the appropriate treatment for a patient, he will refer them to a physiatrist, like Dr. Lawlor. Dr. Smith would only go so far as to say that Vollmer suffers from chronic myofacial pain. He conceded that there was no medical basis for concluding that Vollmer was exaggerating or malingering.

V.

[¶ 23.] In the end, it must be acknowledged that the medical testimony from the doctors was divergent on a single diagnosis. The case is complicated by the fact that Vollmer has suffered from so many different medical ailments and several traumas. On the question of her present condition, Dr. Mills and Dr. Lawlor, two of Vollmer’s treating physicians, concurred that she suffers from a permanent chronic pain syndrome. With Dr. Lawlor, the diagnosis was neurogenic thoracic outlet syndrome; with Dr. Mills, the diagnosis was left shoulder girdle myofascial pain syndrome. Both agreed that her work place injury was a major contributing cause of her present condition. They acknowledged, though, that this condition could not be verified by objective findings. Nonetheless, their diagnoses are recognized maladies in medical science. Simply because an ailment does not manifest objective evidence does not mean it does not exist. Dr. Schabauer, another of Vollmer’s treating physicians, a specialist in cardiology and vascular medicine, testified that he found a considerable amount of muscle spasm and muscle atrophy in the areas where Vollmer was complaining of pain. He considered this an objective finding, but he did not diagnose vascular thoracic outlet syndrome.

[¶ 24.] Dr. Smith, on the other hand, concluded that without objective findings, a diagnosis could not be made. He testified that “the primary rule of surgery and in medicine is if you can’t name it, you can’t cut it. In her case, she doesn’t have a specific diagnosis.” However, he agreed that Dr. Schabauer did make some objective findings: muscle spasm and atrophy. Furthermore, Dr. Lawlor, the physiatrist, testified that over ninety percent of the patients he has treated with thoracic outlet syndrome have only these “semi-objective” findings. Dr. Mills, whose diagnosis was myofacial pain syndrome, testified that there may not be objective tests substantiating the complaints of patients who suffer from this syndrome.

[¶ 25.] Our law does not require objective findings in order to sustain a workers’ compensation claim. SDCL 62-1-15 only provides that “[i]n any proceeding or hearing pursuant to this title, evidence concerning any injury shall be given greater weight if supported by objective medical findings.” This does not necessarily lead to the conclusion that a medical opinion without objective findings should be given no weight.

[¶ 26.] The Department relied, in part, on the testimony of Dr. Finley, the physician who treated Vollmer for her GBS. He testified at one point that he did not believe that the Wal-Mart incident of September 1, 1999 remained a major contributing cause of her present symptoms. The ALJ then concluded that the “opinion of Dr. Finley, when considered in conjunction with Dr. Smith’s opinion, compels the conclusion that the September 1, 1999, incident at Wal-Mart no longer is a major contributing cause of claimant’s current alleged inability to work.” Yet, later in his deposition, Dr. Finley testified that his opinions were limited to addressing the effect of GBS on Vollmer’s condition. He said that he had no opinion on her thoracic outlet syndrome or her myofascial pain, and he would defer those questions to Dr. Mills. Indeed, Dr. Finley never treated her for the symptoms related to the September 1, 1999 incident. Thus, the ALJ’s reliance on Dr. Finley was problematic.

VI.

[¶ 27.] We make the following conclusions from our review of the record: (1) The shoulder and arm problems that Vollmer presently complains of began with her trauma on September 1, 1999, at her place of employment, and they have not changed appreciably since that time. (2) Mel Henrichson, Vollmer’s supervisor at Wal-Mart, described her as “the most capable pharmacy tech I have ever worked with.” He has been a pharmacist for thirty-seven years and supervised many pharmacy technicians. Henrichson witnessed her trauma on September 1,1999. He saw that she could not move her head and left arm and that she appeared to be in pain. (3) All the physicians who examined her agree that she is presently suffering pain in the same area of her body where she first experienced her trauma at Wal-Mart. Also, all agree that she is not exaggerating her pain symptoms or malingering. With respect to the question of malingering, even Dr. Smith, the employer’s independent medical examiner, said that “from an orthopedic perspective I have no information that is happening.” Dr. Smith also agreed that she is suffering from “chronic myofascial pain.” His disagreement centered on causation. (4) Despite her pain, she continues to work in her field part time and to perform all the chores expected of a wife and mother. (5) The surveillance videos do not prove that she lied about her disabilities. She never denied that she could perform the acts she is seen doing on the tapes. She only said that the pain increases as she continues to do them, and to alleviate the pain she must rest or not perform the activities. Even if the ALJ believed that the surveillance videos show that she exaggerated her symptoms, this pertains more to the extent of her disability, rather than the question of causation. After all, it is undisputed that she suffered a traumatic incident while on the job at Wal-Mart. (6) Although no doctor specifically gave her a half-day limit on working, a least one of her doctors concurred with this self-imposed limitation. (7) Simply because medical testimony is divergent is not a reason in itself to conclude that a claimant has failed to prove medical causation.

[¶ 28.] The deeper question here is not just whether Vollmer suffers pain, but whether her credible subjective medical problems prevent her from performing more than four or five hours of work each day. This issue was answered by the ALJ with a finding that Vollmer was not credible. On the credibility question, however, we are struck with the fact that in most of her doctor visits Vollmer was not seeking authentication for a disability claim. She was seeking only to alleviate her pain. Her trip to the pain clinic in Chicago was at her own expense and she went there apparently to resolve her pain. Except when she was taken off work by her physician and when she suffered from GBS, she has continued to work, and she has continued to do all the activities of a mother, wife, and homemaker. The only basis for finding that she was not credible was the ALJ’s viewing of the surveillance videos and the inconsistencies in her medical records, which the ALJ never detailed. Nor did the ALJ explain precisely what he saw in the videos that contradicted her testimony or the testimony of her physicians.

[¶ 29.] Indeed, the surveillance videos do not prove that she does not feel pain or that the pain does not increase as the day goes by. To rule that the videos establish such a conclusion runs directly against unanimous medical opinion. All the doctors agreed that she suffers pain from her condition and is not exaggerating or malingering. She is disabled in the sense that pain hampers her mobility and endurance; it does not preclude her from performing her duties. Thus, to make the precipitate conclusion that she is not suffering as she claims and is therefore not credible is unwarranted on this record. Credibility cannot be invoked like an incantation to dismiss a claimant’s case in the face of competent medical opinion that her pain is a reality. Here, the ALJ found that “[d]ue to numerous inconsistencies in claimant’s reported complaints in the medical records, in her testimony, and in the behavior which was noted during the surveillance, Vollmer is not a credible witness as to her physical condition, her ability to work, or her claim of total disability.” But the ALJ did not document the inconsistencies he found in her medical records, making it difficult for us to verify this conclusion. Credibility is a question for the fact finder to whom we ordinarily defer, but when an ALJ discredits a claimant’s testimony without giving a factual explanation for it, one that is supported in the record, we cannot defer to such a finding.

[¶ 30.] We conclude that Vollmer has established by a preponderance of the evidence that her incident at Wal-Mart was a major contributing cause of her current claimed condition. From our de novo review of the depositions, we conclude that the physicians testifying on Vollmer’s behalf were more persuasive on the question of causation. The Department’s findings on Vollmer’s credibility were clearly erroneous. Because the ALJ discounted the extent of her disability with an erroneous finding on credibility, the case must be remanded for further findings on the precise extent of her work-related disability and a reexamination of her claimed medical expenses.

[¶ 31.] Reversed and remanded.

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

      .As of March 2000, Dr. Beasley indicated, "I do not believe thoracic outlet syndrome is the original diagnosis nor is it the active diagnosis at this time.” On being deposed, he maintained this opinion. At the time of his deposition, Dr. Lawlor had not examined Vollmer for almost two years.

      . In her deposition, Vollmer testified that the car accident had exacerbated her condition, but she had recovered to "a certain extent.”

      . As of June 26, 2001, Dr. Beasley’s notes indicate a "significant amount of complications that have occurred with a neck injury that occurred from a motor vehicle accident in the past.”

      . SDCL 62-1-1 (7) provides in relevant part:
      "Injury” or "personal injury," only injury arising out of and in the course of the employment, and does not include a disease in any form except as it results from the injury. An injury is compensable only if it is established by medical evidence, subject to the following conditions:
      (a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of[.j