author:
SANDSTROM, Justice. MARING, Justice,
      KAPSNER, Justice,

text:
    2008 ND 26
    Darin G. FRUEH, Plaintiff and Appellant v. Melissa A. FRUEH, n/k/a Melissa Hoheisel, Defendant and Appellee.
    No. 20070254.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Michael S. Mclntee, Mclntee Law Firm, Towner, N.D., for plaintiff and appellant.
    Rebecca C. Graves, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Darin G. Frueh appeals an amended district court order denying an evidentiary hearing on his motion for change of custody. We hold Frueh has presented sufficient evidence to establish a prima facie case for modification of custody; therefore, we reverse and remand for an evidentiary hearing on his motion.

I

[¶ 2] Darin Frueh and Melissa Frueh, now known as Melissa Hoheisel, were divorced in January 2004. By stipulation, Hoheisel was awarded custody of their minor child, and Frueh was awarded visitation. At the time of the divorce, Hoheisel moved with the child from the parties’ home in Goodrich to Bismarck. She remarried in March 2006.

[¶ 8] In June 2007, Frueh moved for a change of custody. In his affidavit, he alleged that their twelve-year-old child wanted to live with him and that Hoheis-el’s husband had physically abused the child. An affidavit and a handwritten letter from the child were included with Frueh’s motion, expressing his wishes to live with Frueh. The child also alleged in his affidavit and letter that he had been abused by Hoheisel’s husband. Hoheisel responded with an affidavit claiming that she was unaware of any abuse and that Frueh would be too busy with his farming operation to raise the child on his own. The district court concluded Frueh did not establish a prima facie case under N.D.C.C. § 14-09-06.6(4) warranting an evidentiary hearing.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Frueh’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] Frueh argues the district court erred in denying the evidentiary hearing, because he provided facts establishing a prima facie case that would support a custody modification. To modify custody after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred, and if the court finds a material change in circumstances, it then must decide whether custody modification is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6). A material change in circumstances is demonstrated by establishing a prima facie case under N.D.C.C. § 14-09-06.6(4), which sets forth the procedure a moving party must follow:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

N.D.C.C. § 14-09-06.6(4).

[¶ 6] Regarding a prima facie case, this Court has stated:

A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” It is a bare minimum.

Lagro v. Lagro, 2005 ND 151, ¶ 17, 703 N.W.2d 322 (quoting Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (citations omitted)). Allegations alone do not establish prima facie evidence requiring an evidentiary hearing. Logro, at ¶ 18. Affidavits must be competent in order to establish a prima facie case; competence usually requires that the witness have first-hand knowledge, and witnesses are generally not competent to testify to what they suspect the facts are. Id. Affidavits are not competent when they fail to show a basis of actual personal knowledge or if they state conclusions without the support of evidentiary facts. Id.

[¶7] The opposing party may rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Id. at ¶ 16. When the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant’s allegations are, on their face, insufficient to justify custody modification, the district court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not established a prima facie case and deny the motion without an evidentiary hearing. Id. When an opposing party’s evidence merely creates conflicting issues of fact, however, a court may not weigh the conflicting allegations in considering whether a movant has established a prima facie ease. Roberson v. Roberson, 2004 ND 203, ¶ 6, 688 N.W.2d 380.

[¶ 8] We review the denial of an evidentiary hearing on change of custody under an abuse-of-discretion standard. Lagro, 2005 ND 151, ¶ 14, 703 N.W.2d 322. A district court abuses its discretion if it misinterprets or misapplies the law. Bertsch v. Bertsch, 2007 ND 168, ¶ 10, 740 N.W.2d 388.

Ill

[¶ 9] In support of his motion for change of custody, Frueh filed an affidavit alleging that Hoheisel had remarried and that Hoheisel’s husband had abused the child. His affidavit also claimed it was the child’s wish to live with him. Included with Frueh’s motion was an affidavit and a handwritten letter from the child expressing his desire to live with Frueh. The child’s affidavit and letter also stated Ho-heisel’s husband had grabbed him by the throat.

[¶ 10] Hoheisel responded with her own affidavit denying there was any abuse. She stated her husband had grabbed the child by the chin rather than the throat. She included a report from Burleigh County Social Services that stated there were no risk factors for abuse or neglect. She also alleged that Frueh would be too busy on his farm to adequately care for the child.

[¶ 11] The district court found Frueh did not establish a prima facie case. In its order finding no prima facie case, the court stated:

The main argument is that Melissa had moved to Bismarck with [the child], that Melissa’s new husband had been abusing [the child] and that [the child] wanted to live with Darin. Melissa rebutted the allegations of abuse and pointed out that Darin would be too busy to properly supervise [the child]. Although [the child] is nearing an age when his wishes would be considered by a Court in an initial custody determination, those wishes alone are not controlling.

[¶ 12] We conclude Frueh has provided sufficient competent evidence to establish a prima facie ease warranting an evidentiary hearing on his motion. The allegations of abuse in his affidavit had factual support in the child’s own affidavit and handwritten letter. The child’s affidavit also supported Frueh’s allegation that the child wanted to live with him. The remarriage of a parent, as well as a mature child’s preference to live with one parent, may constitute a material change of circumstances that would be sufficient to raise a prima facie case for change of custody, entitling the movant to an eviden-tiary hearing. See Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924 (remarriage); Kelly v. Kelly, 2002 ND 37, ¶ 19, 640 N.W.2d 38 (child’s preference). Additionally, evidence of abuse would also constitute a material change in circumstances. Dietz v. Dietz, 2007 ND 84, ¶ 13, 733 N.W.2d 225.

[¶ 13] Although Hoheisel submitted an affidavit opposing Frueh’s allegations, it does not conclusively establish that Frueh’s allegations are not credible or that his allegations are insufficient, on their face, to justify custody modification. Ho-heisel’s affidavit creates conflicting fact issues about some of Frueh’s allegations. A court may not weigh conflicting allegations in considering whether a movant has established a prima facie case; such weighing of the evidence is done at an evidentia-ry hearing. The district court misapplied the law by weighing the conflicting evidence in the affidavits. We therefore reverse the order denying Frueh’s motion to modify custody, and we remand for an evidentiary hearing.

IV

[¶ 14] The district court’s amended order is reversed, and the case is remanded for an evidentiary hearing on Frueh’s motion for change of custody.

[¶ 15] GERALD W. VANDE WALLE, C.J., concurs.

MARING, Justice,

specially concurring in the result.

[¶ 16] I respectfully concur in the result. I would reverse the trial court’s order denying an evidentiary hearing on Darin Frueh’s motion for change of custody, but for different reasons than those stated in the majority opinion.

[¶ 17] Darin Frueh alleges that the new husband of Melissa Hoheisel abused the minor child and that the child wants to live with him. Frueh filed an affidavit that contained no personal knowledge of any abuse. He attached to his affidavit a handwritten letter signed by the minor child, which was not in affidavit form and not notarized and, therefore, not competent admissible evidence. The trial court entered its order finding no prima facie case on July 24, 2007. On July 25, 2007, the trial court received a supplemental affidavit from Darin Frueh and a notarized affidavit from the minor child. The trial court considered these affidavits and declined to change its decision. The trial court entered an amended order again finding no prima facie case.

[¶ 18] The affidavit of the minor child alleges that his stepfather “grabbed me by the throat.” The minor child explains that he pushed his stepbrother because the stepbrother was making fun of him. The minor child alleges his stepfather grabbed him by the throat and said “don’t do that or something like that.” The minor child does not allege he was injured or hurt. He alleges only this one incident. The record indicates this incident would have occurred in March 2006, over one year before Darin Frueh brought his motion on June 29, 2007, to change custody. There are no allegations of “abuse” occurring before March 2006 or after the incident in March 2006. Although the trial court’s decision arguably relies on the rebuttal affidavit of Melissa Hoheisel and the Bur-leigh County Social Services’ finding of “no risk factors for abuse or neglect,” the trial court’s decision is correct that there is not a prima facie case to warrant a hearing based on the evidence before it on the issue of abuse by the stepfather. We have said:

The moving party establishes a prima facie case by alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an eviden-tiary hearing, would support a custody modification in her favor.

Tank v. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622.

[¶ 19] Remarriage alone does not dictate a change of custody. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993) (citing Gould v. Miller, 488 N.W.2d 42, 44 (N.D.1992)). The trial court should modify custody only if a change in custody is necessary or required for the best interest of the child. N.D.C.C. § 14-09-06.6. In Volz v. Peterson, 2003 ND 139, ¶ 6, 667 N.W.2d 637, we said:

In a modification decision, the trial court must first determine whether a material change in circumstances has occurred and then whether “the modification is necessary to serve the best interest of the child.” N.D.C.C. § 14-09-06.6(6).

[¶ 20] “An environment that endangers the child’s physical or emotional health is considered a material change in circumstance.” Mock v. Mock, 2004 ND 14, ¶ 7, 673 N.W.2d 635. However, not every change in circumstance necessitates a modification of custody in the best interest of the child. See Dalin v. Dalin, 512 N.W.2d 685 (N.D.1994). In this case, even if the allegation of the minor child was ultimately proven and found to be true, it would not establish a prima facie case under N.D.C.C. § 14-09-06.6(4). There is no evidence of any harm or potential harm to the minor child. The allegation in this case of one incident which occurred over one year ago is not sufficient to establish a material change in circumstances necessitating a change in custody in the best interest of the child. See N.D.C.C. § 14-09-06.6(6); Tank, 2004 ND 15, ¶43, 673 N.W.2d 622 (Maring, J., dissenting); Mock, at ¶ 25 (Maring, J., dissenting) (stating one of the purposes of the North Dakota motion practice-affidavit practice is to discourage unsubstantial motions for modification). The question of whether to grant an evidentiary hearing rests in the discretion of the trial court. Lagro v. Lagro, 2005 ND 151, ¶ 14, 703 N.W.2d 322. I am of the opinion that based on the evidence presented by Darin Frueh on the issues of Melissa Hoheisel’s remarriage and the abuse of the minor child by her husband, the trial court did not abuse its discretion in denying an evidentiary hearing.

[¶ 21] The third basis for Darin Frueh’s motion for modification is the preference of the minor child to live with him on the farm. The minor child’s affidavit does state that he wants to live with his dad on the farm. The minor child was twelve years old when he signed and filed the affidavit. We have stated that a mature child’s preference should only be considered if there are persuasive reasons for it. Krizan v. Krizan, 1998 ND 186, ¶ 9, 585 N.W.2d 576 (emphasis added). In this case, the minor child’s affidavit does state the reasons he wants to live with his dad, including that he wants to play sports in Harvey, wants to farm, and does not like his stepfather. Based on the age of the minor child and his affidavit stating with particularity the reasons why he wants to live with his dad, a prima facie case was made by Darin Frueh entitling him to an evidentiary hearing.

[¶ 22] However, in making its ultimate decision on whether to change custody, the trial court must examine the preference of the child with care because a preference “ ‘may ... be motivated by goals and ambitions which undermine the significance of that preference ... ’” Barstad, 499 N.W.2d at 588 (quoting Mertz v. Mertz, 439 N.W.2d 94, 96-97 n. 2 (N.D.1989)). We held in Barstad “[a] twelve-year-old’s desire to remain involved in hometown sports activities is a ‘goal[ ] and ambition[ ],’ that cannot trump the superior benefits to his best interests that we have recognized to inhere in the finality of litigation and the stability of the ongoing custodial relationship.” Barstad, 499 N.W.2d at 588-89 (citations omitted).

[¶ 23] I, therefore, concur in the result of the majority opinion and would reverse and remand for an evidentiary hearing.

[¶ 24] Mary Muehlen Maring.

KAPSNER, Justice,

concurring in the result.

[¶ 25] For reasons set forth in my dissent in Lagro v. Lagro, 2005 ND 151, ¶¶ 27-34, 703 N.W.2d 322 (Kapsner, J., dissenting), I dissent from the statement in paragraph 8 of the majority opinion that the standard of review is an abuse-of-discretion standard. That standard ignores the language of N.D.C.C. § 14-09-06.6(4), embodying the concept of a prima facie case. Determining whether a prima facie case has been established is a matter of law, not discretion. However, applying the correct standard of review, I concur the order must be reversed for the reasons set out in paragraphs 12 and 13 of the majority opinion and I concur in the result.

[¶ 26] DANIEL J. CROTHERS, concurs.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2008 ND 35
    STATE of Michigan, County of Huron, ex rel., Margaret SCHNEIDER, Plaintiff v. Darwin SCHNEIDER, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest, Appellant.
    No. 20070230.
    Supreme Court of North Dakota.
    Feb. 21, 2008.
    Darwin Schneider, defendant and appel-lee. No appearance.
    John D. Waller (argued) and Janet K. Naumann (on brief), Special Assistant Attorneys General, Fargo, ND, for appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] The State of North Dakota appealed an order entered on a motion for default judgment. We have stated an appeal from an order is properly before this Court if the record contains a consistent judgment. Olson v. Job Serv. North Dakota, 379 N.W.2d 285, 287 (N.D.1985). On June 18, 2007, the district court entered a judgment consistent with its earlier order. We treat this appeal as an appeal from that judgment. Hall Family Living Trust v. Mutual Service Life Ins. Co., 2001 ND 46, ¶ 1 n. 1, 623 N.W.2d 32. We reverse the district court order reducing Schneider’s child support and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] In June 2006, the Fargo Child Support Enforcement Unit' (“Unit”) , received a request from the State of Michigan to establish paternity, child support and medical support from Darwin Schneider for two minor children. Schneider was a college student in Fargo. The Unit calculated child support in the amount of $200 per month using the child support guidelines and calculated arrears of $200 per month dating back to June 2006. Schneider requested a hearing on the issue of child support.

[¶ 3] At the hearing, Schneider requested that his child support be set at $100 per month, rather than the $200 amount calculated by the Unit, citing his status as a college student, significant fines owed to the IRS and restitution owed to victims in a prior criminal case. The district court issued an order for judgment, setting Schneider’s child support obligation at $100 per month until his expected graduation date in May 2008 and ordered arrears to be calculated at $100 per month from June 2006. The State of North Dakota is a statutory real party in interest under N.D.C.C. § 14-09-09.26.

II.

[¶ 4] The State argues the district court did not make findings of fact nor detail the criteria used to rebut the presumptively correct guidelines. The scheduled support under the guidelines is the presumptively correct support amount. N.D. Admin. Code § 75-02-04.1-13. The presumptive amount “is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children.” N.D. Admin. Code § 75-02-04.1-09(2). Under N.D.C.C. § 14-09-09.7(3), child support must be ordered in the presumptive amount unless, taking into consideration the best interest of the children, the court finds the presumptive amount is not the correct amount of child support. Wagner v. Wagner, 1998 ND 117, ¶ 5, 579 N.W.2d 207. This Court has emphasized any deviation from the guidelines requires the court to make a written finding or a specific finding on the record. Schumacher v. Schumacher, 1999 ND 10, ¶ 10, 589 N.W.2d 185 (citation omitted). No such written or specific finding was made in this case.

[¶ 5] The only statement in the record regarding the decision to deviate from the guidelines was the bare statement by the district court that it was “going to exercise some discretion” in setting Schneider’s child support at $100 per month until May of 2008. The district court’s order does not state that the $100 per month is a deviation from the guidelines nor does it include any findings of fact which explain its decision to deviate from the guidelines. We will not speculate as to the district court’s reason for its order.

III.

[¶ 6] The State argues the district court erred as a matter of law in reducing the child support because neither Schneider’s fines and restitution nor his status as a college student are proper grounds for deviation from the guidelines. An exclusive list of reasons to deviate from the Guidelines is found at N.D. Admin. Code § 75-02-04.1-09(2). Jarvis v. Jarvis, 1998 ND 163, ¶ 23, 584 N.W.2d 84. Subsection j allows a court to take into account “[t]he reduced ability of the obligor to pay child support due to a situation, over which the obligor has little or no control, which requires the obligor to incur a continued or fixed expense for other than subsistence needs, work expenses, or daily living expenses, and which is not otherwise described in this subsection.” N.D. Admin. Code § 75-02-04.1-09(2)(j). A situation over which the obligor has little or no control, under subsection j, does not exist if the situation arises out'of illegal activity. N.D. Admin. Code § 75-02-04.1-09(5). While it is not apparent from the record that Schneider met any of the factors in N.D. Admin. Code § 75-02-04.1-09(2), this is a trial court determination to be made upon remand.

[¶ 7] We reverse and remand this case to the trial court to set Schneider’s child support obligation at the presumptive amount or make a specific finding on the record detailing why deviation is appropriate.

■ [¶ 8] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


author: ZINTER, Justice.

text:
    2008 SD 10
    LAMAR ADVERTISING OF SOUTH DAKOTA, INC., Plaintiff and Appellant, v. HEAVY CONSTRUCTORS, INC., Defendants and Appellees. and Epic Outdoor Advertising, L.L.P., Defendants.
    No. 24454.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 6, 2007.
    Decided Feb. 6, 2008.

      John K. Nooney of Thomas, Nooney, Braun, Solay & Bernard, L.L.P., Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    David E. Lust, Amy K. Koenig of Gun-derson, Palmer, Goodsell & Nelson, L.L.P., Rapid City, South Dakota, Attorneys for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Lamar Advertising of South Dakota, Inc. appeals the circuit court’s denial of Lamar’s request for specific performance of a billboard/sign lease. In the alternative, Lamar appeals the circuit court’s calculation of damages arising from Heavy Constructors, Ine.’s breach of the lease. We affirm the denial of specific performance, but reverse and remand for a new trial on damages.

[¶ 2.] Lamar is engaged in the outdoor advertising business. The business involves leasing, purchasing, or otherwise acquiring rights to real property in order to construct billboard signs (hereinafter “sign” or “billboard”) for lease to entities interested in advertising. Lamar’s predecessor in interest obtained a permit to construct a sign on real property owned by Heavy Constructors’ predecessor .in interest. The sign was constructed in Rapid City, South Dakota, near an exit on an interstate highway that experiences a large traffic volume. Lamar acquired the lease from Heavy Constructors in 1998, and the parties renewed the lease for March 1, 1999 through March 1, 2009, at an annual rent of $1,000. The lease prohibited Heavy Constructors from allowing other billboards to be constructed within 1,000 feet of Lamar’s sign. It also allowed Lamar to relocate its sign on Heavy Constructors’ premises.

[¶ 3.] In late 2002, Epic Outdoor Advertising, LLP, also obtained leases for signs from Heavy Constructors on the same property. Epic began construction of its signs in February of 2008. Two of Epic’s signs were constructed in violation of Lamar’s 1,000 foot restriction: one was 830 and the other 525 feet from Lamar’s sign. Heavy Constructors admitted that it made a mistake when it allowed Epic to construct the signs in violation of the 1,000 foot restriction.

[¶4.] All parties attempted to negotiate a resolution. During negotiations the parties learned that Lamar’s sign had been inadvertently constructed on an unopened section line right-of-way. Additionally, Rapid City annexed the property. City officials ordered that the Lamar sign be removed from the section line. To further complicate matters, pre-existing county ordinances required only 500 feet between outdoor advertising signs, but the city ordinances required a 1,000 foot separation. Consequently, there is no dispute that because of the city’s restriction and without the removal of one or more of Epic’s signs, Lamar was unable to relocate its sign on the property. Ultimately, despite the city’s demand, Lamar failed to remove the sign and Heavy Constructors removed it.

[¶ 5.] Lamar subsequently brought this action against Heavy Constructors and Epic seeking damages or specific performance requiring the removal of one or more of the Epic signs so that Lamar could reconstruct its sign on Heavy Constructors’ property. All parties moved for summary judgment. The circuit court ruled that: Heavy Constructors allowed Epic to erect its signs in “direct ... violation of [Heavy Constructors’] responsibilities under its Lease with Lamar”; the lease “clearly envisions and allows a potential relocation of [Lamar’s] sign at the discretion of [Lamar] in the vicinity of the existing sign,” yet Lamar could not exercise its right to relocate its sign under the lease “solely because of the placement of the Epic signs.” The court then requested briefing on Lamar’s remedies.

[¶ 6.] After a clarifying ruling, the court ultimately denied Lamar’s request for specific performance and determined the measure of damages it would allow at trial. The court determined that Lamar would only be allowed damages for the difference between the fair market value of the unexpired term of the lease (market rent) and the rent reserved in the lease (the contract rent). This measure of damages is often referred to as the lease “bonus value.” The court specifically ruled that “lost profits, income flow, and ‘net operating income generated by the billboard’ [were] not recoverable [as a matter of law,]” and evidence of those losses would not be permitted at trial. The circuit court reasoned that “[t]o whatever extent income or profits from the established signs can be considered in determining] the fair market value of the lease, they have been appropriately considered in the bonus value.... I have not seen a single lease agreement between Lamar and any other lessor which remotely approaches the damages claimed.” The circuit court continued, “... profits based upon third party contracts seem irrelevant to me in determining the fair market value of the leasehold between landowners and sign companies.”

[¶ 7.] Following these rulings, a trial date was scheduled, and the parties retained experts to calculate Lamar’s damages. Lamar retained Dr. Rudolfo Aguilar, and Heavy Constructors retained Ken Simpson, SRA. Aguilar prepared a detailed appraisal of Lamar’s leasehold interest. He first calculated the lease’s bonus value in accordance with the court’s ruling. Aguilar opined that market rents in the area were $2,781 per month and Lamar’s contract rent was $1,000 per month. He then calculated the present value of the difference (the bonus value) over the 102 months remaining on the lease, which was $10,950.48 (rounded to $11,000). In contrast, Simpson opined that there was no bonus value because he opined that market rents were $1,000 — the same as Lamar’s contract rent. Because he opined the market rent and contract rent were equal, Simpson concluded that Lamar suffered no damages.

[¶ 8.] Aguilar’s opinion of Lamar’s damages was not limited to the bonus value. Aguilar also considered lost income based upon the leasing history of the sign. He specifically analyzed the sign’s occupancy and rent history and Lamar’s comparative statement of operations, including existing advertising contracts with third parties. Based upon that analysis, Aguilar opined that Lamar also suffered a loss of “net operating income generated by [Lamar’s sign] [in] an additional $57,000.” Ultimately, Aguilar opined that Lamar’s total loss was $68,000 ($57,000 in lost net income plus $11,000 bonus value).

[¶9.] The parties submitted the issue of damages to the court on stipulated facts. After considering the parties’ submissions, the court rejected Simpson’s opinion of the lease’s bonus value and adopted Aguilar’s opinion on that issue. The circuit court did not, however, adopt Aguilar’s opinion regarding Lamar’s $57,000 loss of net income. The court therefore entered judgment for Lamar in the amount of $11,000. Lamar appeals, arguing that it was entitled to specific performance, or in the alternative, that the circuit court should have considered Aguilar’s evidence of lost net income.

Specific Performance

[¶ 10.] Lamar argues that the circuit court should have granted specific performance ordering Heavy Constructors to continue leasing the property to Lamar under the terms of its lease. This remedy would have required Heavy Constructors' to remove one or more of the Epic signs in order for Lamar to relocate its sign under the city ordinances. The circuit court denied Lamar’s request for specific performance on three grounds: laches, harm to a third party, and failure to demonstrate that the sign’s location was sufficiently unique. We also observe that “[a]n essential element to equitable relief is the lack of an adequate remedy at law.” Rindal v. Sohler, 2003 SD 24, ¶ 12, 658 N.W.2d 769, 772. “Specific performance is an equitable remedy and this [CJourt’s standard of review addresses whether there has been an abuse of discretion by the circuit court after reviewing the facts and circumstances of each case.” Amdahl v. Lowe, 471 N.W.2d 770, 773 (S.D.1991).

[¶ 11.] To support the affirmative defense of laches in this case:

[It] must be found that, (1) [Lamar] had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, [Lamar] engaged in an unreasonable delay before commencing this suit, and (3) that allowing [Lamar] to maintain the action would prejudice [Heavy Constructors and Epic].

Burch v. Bricker, 2006 SD 101, ¶ 15, 724 N.W.2d 604, 608. The record reflects that Lamar drafted the renewal lease, and therefore had knowledge of its provisions. Lamar also had knowledge of the Epic leases and the commencement of Epic’s construction, but Lamar gave no notice of the lease violation until Epic’s signs were substantially completed. Although Lamar argues that it acted with reasonable diligence, the circuit court found that Lamar unreasonably delayed in providing notice of the violation until Epic’s signs were substantially completed. We agree.

[¶ 12.] The circuit court also found that specific performance would result in unjust harm to an innocent third party — Epic—as Lamar would be attempting to enforce a remedy under a contract to which Epic was not a party. The circuit court finally found that the claim for uniqueness was “questionable given the nature of Lamar’s business.” Considering these factors together with the fact that both parties’ experts were able to calculate damages, the circuit court did not abuse its discretion in denying Lamar’s request for specific performance.

Damages

[¶ 13.] Lamar argues that the circuit court erred in refusing to even consider evidence of lost net income. This raises a question of law. “Conclusions of law are reviewed under a de novo standard of review and no deference is given to the trial court’s conclusions of law.” Melstad v. Kovac, 2006 SD 92, ¶ 6, 723 N.W.2d 699, 702.

[¶ 14.] Pursuant to SDCL 21-2-1, damages for breach of contract consist of the amount that will compensate the aggrieved party for all of the detriment caused by, and that are the likely result of, the breach. The statute provides:

For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and their origin.

SDCL 21-2-1. See also Tri-State Refining and Inv. Co., Inc. v. Apaloosa Co., 431 N.W.2d 311, 315 (S.D.1988) (citing SDCL 21-2-1 and concluding that the correct measure of damages for breach of a lease was the detriment to the lessee resulting from the breach of contract). The purpose of contract damages is to put the injured party in the same position it would have been had there been no breach. Bad Wound v. Lakota Comty. Homes, Inc., 1999 SD 165, ¶ 9, 603 N.W.2d 723, 725. To recover damages for breach of contract, the loss must, however, “be clearly ascertainable in both its nature and origin.” McKie v. Huntley, 2000 SD 160, ¶ 18, 620 N.W.2d 599, 603. “In proving damages, the party must also establish ‘a reasonable relationship between the method used to calculate damages and the amount claimed.’” FB & I Bldg. Prod., Inc. v. Superior Truss & Components, A Div. of Banks Lumber, Inc., 2007 SD 13, ¶ 20, 727 N.W.2d 474, 480 (citing McKie, ¶ 18, 620 N.W.2d at 603). The damages must also be reasonably certain and not speculative. Olson v. Aldren, 84 S.D. 292, 299, 170 N.W.2d 891, 895 (1969).

[¶ 15.] This Court has recognized the propriety of awarding lost profits as damages for breach of contract. See Table Steaks v. First Premier Bank, N.A., 2002 SD 105, 650 N.W.2d 829 (concluding lost profits were admissible in restaurant’s action against bank and credit card company alleging breach of contract); Arcon Const. Co., Inc. v. S.D. Cement Plant, 382 N.W.2d 668 (1986) (concluding contractor was entitled to amend complaint for lost profits resulting from breach of contract); and Atyeo v. Paulsen, 319 N.W.2d 164 (S.D.1982) (concluding that the jury should have been instructed on provable lost income that resulted from the lessor’s breach of a farm lease).

[¶ 16.] The right to recover lost income as a measure of damages has also been recognized in breach of contract cases involving signs or billboards. In Whitmier & Ferris Co., Inc. v. Buffalo Structural Steel Corp., 482 N.Y.S.2d 927, 104 A.D.2d 277 (N.Y.A.D.1984), a billboard company sought damages from a property owner for breach of a billboard lease. The billboard company sought lost income based on the monthly rental of two comparable parcels that the property owner subsequently leased for outdoor advertising to a third party. The trial court held that as a matter of law, the lessee was not entitled to recover lost profits, but was limited to recovering the difference between the actual rental value of the lease and the rental reserved in the lease (the bonus value). The New York Supreme Court, Appellate Division, affirmed the judgment because factually, the lessee could not prove such damages for a “suppositious” third party lease that could never have been in the contemplation of the property owner and the lessee. The court disagreed, however, with the lower court’s conclusion that as a matter of law, a lessee cannot recover lost profits in such cases. Id. at 928, 104 A.D.2d at 278, 482 N.Y.S.2d 927.

[¶ 17.] Similarly, Van Wagner Adver. Corp. v. S & M Enter., 67 N.Y.2d 186, 501 N.Y.S.2d 628, 492 N.E.2d 756 (N.Y.1986), involved a lessee who suffered damages for breach of a lease for advertising space. In its damage assessment, the superior court awarded damages that included consideration of lost revenues on existing advertising contracts. The New York Court of Appeals affirmed the admissibility of lost revenues, stating, “it is hardly novel in the law for damages to be projected in the future[,][p]articularly where the value of commercial billboard space can be readily determined by comparison with similar uses[.]” Id. at 194, 501 N.Y.S.2d at 633, 492 N.E.2d at 760.

[¶ 18.] Heavy Constructors, however, argues that South Dakota does not allow for the recovery of lost profits or revenues under any circumstances. It relies on City of Sioux Falls v. Naused, 88 S.D. 303, 218 N.W.2d 536 (1974), a case in which the City of Sioux Falls condemned property that had been leased to an equipment company. In reviewing the trial court’s measure of damages, this Court did state that the measure of damages for a leasehold interest is the bonus value; i.e. “the difference between the fair rental value of the leased premises for the unexpired term of the lease and the rent reserved in the lease.” Id. at 306, 218 N.W.2d at 538. In Naused, however, there was no claim for lost income, nor was there any contention that the leasehold was not replaceable.

[¶ 19.] Similarly, State Highway Comm’n v. Foye involved a condemnation proceeding in which the parties stipulated to the amount of just compensation due to the property owners for the taking. 87 S.D. 206, 205 N.W.2d 100 (1973). The only issue on appeal was the apportionment between the owners of the property and the tenant. This Court considered the value of the leasehold interest and whether the tenant was entitled to its cost of improvements on the property. In determining damages, we stated, “under the prevailing view a loss of profits sustained by a lessee by reason of the taking is not recoverable as an element of damages.” Id. at 210, 205 N.W.2d at 102. Again, however, that tenant did not claim lost profits, nor does the opinion reflect that the leasehold was not replaceable.

[¶20.] Moreover, it must be emphasized that this is a breach of contract case involving contract damages. As indicated in both Naused and Foye, condemnation cases involve the fair market value of a leasehold interest. That measure of damages is different. South Dakota Constitution art. 6 § 13, provides, in relevant part:

Private property shall not be taken for public use, or damaged, without just compensation!.] No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged.

As the text suggests, condemnation cases deal with determining “just compensation” for the value of the property at the time of the taking. See Krier v. Dell Rapids Tp., 2006 SD 10, ¶ 21, 709 N.W.2d 841, 846. In contrast, Lamar is entitled damages for breach of contract in an amount that will compensate it for all of the detriment caused by, and which is the likely result of, the breach. SDCL 21-2-1. Therefore, the trial court erred in focusing on cases that involved just compensation for the value of an interest in real estate when Lamar’s claim is for contract damages, which includes all detriment proximately caused including that likely to result from the breach.

[¶21.] Nevertheless, Heavy Constructors contends that under Peter Kiewit Sons’ Co. v. Summit Const. Co., 422 F.2d 242 (8th Cir.1969), anticipated lost revenues or profits are not recoverable in an action for breach of contract. In Peter Kiewit, a subcontractor brought a claim for anticipated lost profits. Unlike Lamar’s case, however, the subcontractor not only claimed that it was entitled to profits that it would have received had the contract not been breached, but also profits “from other contracts and such other business as it might have secured.” Id. at 275 (emphasis added). The Eighth Circuit rejected this claim, finding it “conjectural and speculative at best.” Id. at 276. This reasoning has support in billboard cases: those where the future income and damages are speculative. See Florida Outdoor, Inc. v. Stewart, 318 So.2d 414 (Fla.Dist.Ct.App.1975) (holding that where there was no evidence to support the assumption that the rental of a billboard would have continued had it not been torn down, the trial court’s award for anticipated loss profits was improper); Tri-State Sys., Inc. v. Village Outlet Stores, Inc., 135 Ga.App. 81, 217 S.E.2d 399 (Ga.Ct.App.1975) (holding that store owner’s allegations of damages, which included “generalized statements” that he improved and expanded his store and increased inventory was speculative, and therefore the evidence failed to provide a rational basis of computation). Like Peter Kiewit, other billboard cases have disallowed future profits where no evidence supported the claim. See, i.e., Nat’l Adver. Co. v. Wilson Auto Parts, Inc., 569 N.E.2d 997 (Ind.Ct.App.1991) (noting that the record contained no evidence of any lost revenue because of the breach of contract); and Dep’t of Transp. v. El Carlo Motel, Inc., 140 Ga.App. 779, 232 S.E.2d 126 (Ga.Ct.App.1976) (reversing the trial court, noting that it was error to allow recovery of lost profits when no evidence of loss profits was provided).

[¶ 22.] We also disallow conjectural and speculative damages. See Basin Elec. Power Coop. v. Poindexter, 305 N.W.2d 46, 49 (S.D.1981), and Neb. Elec. Generation & Trans. Co-op. v. Tinant, 90 S.D. 284, 291-92, 241 N.W.2d 134, 138 (1976). Aguilar’s appraisal, however, was based upon existing contracts that Lamar executed with third parties and historical evidence of net income. Therefore, unlike Peter Kiewit’s consideration of lost profits that the subcontractor “might have secured,” Aguilar considered Lamar’s actual income. In such cases involving actual leases, revenues and expenses, lost profits are a proper measure of damages for at least the period of the contract. See Van Wagner Adver. Corp., 67 N.Y.2d at 194, 501 N.Y.S.2d at 633, 492 N.E.2d at 760. For these reasons, Peter Kiewit is inapposite.

[¶ 23.] Finally, Heavy Constructors argues that In re Urban Redevelopment Auth. of Pittsburgh, Allegheny County, 440 Pa. 321, 272 A.2d 163 (1970), supports its view that future lost net income should not be considered when calculating damages. In that case, the Supreme Court of Pennsylvania held that a billboard company’s loss of future income was irrelevant in determining the fair market value of a leasehold. Id. at 325, 272 A.2d at 165. Again, however, that was a condemnation case, and Pennsylvania adopted a statute on condemnation that specifically disallowed evidence of lost profits. Further, in that case, the court assumed that the billboard could be relocated “for the same amount of rent, [and Outdoor could] construct its billboards at [the new] location with the award for the replacement value of the billboards and realize an identical income flow.” Id. at 326, 272 A.2d at 165. Because of its reliance upon the condemnation statute and its.assumption on relocation, Urban Redevelopment is inapposite.

[¶ 24.] We ultimately conclude that the circuit court erred in holding as a matter of law that evidence of lost net income is not admissible in a contract action involving the breach of an unexpired billboard lease. “Our case law has long emphasized that the ‘object of compensatory damages is to make the injured party whole[,]’ ” and we do not favor the adoption of “blanket rule[s]” that exclude evidence of damages without first considering the circumstances in which those damages occurred. O’Bryan v. Ashland, 2006 SD 56, ¶ 21, 717 N.W.2d 632, 639 (citations omitted). Instead, we examine those circumstances to determine whether the claim is “remote, speculative, or uncertain.” City of Winner v. Bechtold Inv., Inc., 488 N.W.2d 416, 419 (S.D.1992) (citing Basin Elec. Power Coop., 305 N.W.2d at 49 (quoting Neb. Elec. Generation & Trans. Co-op., 90 S.D. at 291-92, 241 N.W.2d at 138)). Although many breach of contract cases involving billboards have concluded that anticipated loss of net income is too speculative, “the law recognizes an exception ... when such loss of profits is shown to a reasonable certainty by competent proof.” Florida Outdoor Inc., 318 So.2d at 415. Therefore, on remand, Lamar is entitled to attempt to prove a reasonably certain loss of net income by competent proof. Should Lamar prove entitlement to lost net income, we leave it to the circuit court to determine whether an additional award of bonus value would result in improper duplicate compensation.

[¶25.] Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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

      . The two provisions of the lease pertinent to this case are:
      [Heavy Constructors] hereby leases to [Lamar] ... as much as the hereinafter described premises as may be necessary for the construction, repair, and relocation of ... structures ... to be situated at the approximate location(s) as shown below.

      [Heavy Constructors] agrees not to erect or allow any other off-premises advertising structures on property owned or controlled by [Heavy Constructors] within ... 1,000 Feet of [Lamar's] advertising structure or to allow any other obstruction ... that may obstruct the highway view of its advertising structure(s). [Lamar] is hereby authorized to remove any such other advertising structure, obstruction or vegetation at its option.

      . Lamar appealed to the Sign Code Board of Appeals and then to the City Council. In February 2004, the City Council upheld the decision and ordered the sign removed.

      . At the August 9, 2004 motions hearing, the circuit court inquired:
      Court: I guess the first particular question I have is why can’t Lamar relocate? ... Is there a geographical impossibility of relocation^]
      Epic: Ordinances that now are in place, it's my understanding that Lamar can’t — given the property configurations, Lamar can’t move their sign any place else on the [interstate] corridor on the property that would be — meet the requirements with city ordinances.
      Court: Why not?
      Epic: It violates city ordinances.
      Similarly, at the August 15, 2005 motions hearing, the court again inquired:
      Court: Is there a practical impossibility of building the signs within the 1,000 feet if it’s only parallel?
      Lamar: Absolutely impossible to build a sign without a variance.
      Court: Other side of the road?
      Lamar: Still can’t build it. They already have signs up over there. You have to take down a sign to put up a sign and that’s kind of contrary to the bottom line.

      . Aguilar was the Chairman, President and CEO of The Aguilar Group, Inc., a real estate consulting company. Aguilar received his Ph.D. in civil engineering and is a registered architect, a professional land surveyor, a clinical professor of business administration at Tulane University, and a certified general real estate appraiser.

      . Considering the governmental regulations in existence, we question the circuit court’s decision that the property was not unique, especially in light of the evidence that the sign could not be relocated. In any event, for purposes of our review of the propriety of specific performance, we need not resolve the uniqueness issue because the circuit court’s decision was supported by laches, harm to a third party, and the existence of an adequate remedy at law.

      . In reaching this conclusion, Whitmier noted that the parties could not have reasonably contemplated that the property owner would be responsible “for loss of profit damages for breach of a suppositious lease, the terms of which could not, if ever, be known until some future time when [lessee] might negotiate with a third party.” Id. at 929, 104 A.D.2d at 279, 482 N.Y.S.2d 927 (emphasis added). In this case, however, it is undisputed that Lamar had existing contracts with third parties.

      . Even a substantial body of condemnation cases conclude that lost net income is recoverable for an advertising sign if the sign cannot be relocated. In Nat’l Adver. Co. v. State, Dep’t of Transp., 116 Nev. 107, 993 P.2d 62 (2000), Nevada sought to acquire property for the construction of a freeway extension. Advertising companies, whose billboards were removed, sought compensation for the value of their leasehold interests. The Nevada Supreme Court reversed a circuit court’s conclusion that the measure of value of the leasehold interest was limited to the bonus value. The Nevada court rejected a measure that was limited to bonus value and adopted the income approach when billboards cannot be relocated to comparable, income-generating sites. In so doing, the court noted the importance of location in the ability of a billboard to generate advertising income and the difficulty in relocating billboards under restrictive regulations. Id. at 113, n. 4, 993 P.2d at 66 n. 4 (citing 8A Nichols on Eminent Domain § 23.03[5][a], at 37-42 (3d ed.1997, 1998)).
      In this case it is undisputed that Lamar's billboard could not be relocated on Heavy Constructors’ premises. Furthermore, both parties’ arguments to the circuit court suggested that in view of the current governmental sign restrictions, Lamar’s billboard may not be relocatable in that area. Where governmental ordinances prevent or restrict relocation of billboards, damages are to include the total value of the leasehold interest. Nat’l Adver. Co. v. State, Dep’t. of Transp., 611 So.2d 566, 570 (Fla.Dist.Ct.App.1992). As the Nevada Supreme Court explained:
      The income generated from the billboards should have been considered in determining the value of the [advertising company’s] leasehold interests. The bonus value approach does not sufficiently compensate the [advertising company] for their leasehold interests. As noted by the district court, the bonus value approach is based on the assumption that the [advertising company] may keep the benefit of their bargain with the [lessor] if they can relocate their billboards under a comparable lease at market value to another comparable site. The evidence in this case, however, clearly establishes that these billboards were invaluable, unique locations, and that the billboards could not be relocated to a comparable site within the market area.
      116 Nev. at 114 n. 6, 993 P.2d at 67 n. 6. Nat’l Adver. cited a number of other cases supporting this view:

        City of Scottsdale v. Eller Outdoor Adver. Co. of Arizona, 119 Ariz. 86, 579 P.2d 590, 596-98 (Ct.App.1978) (concluding that the income approach is the best method of valuation only when a billboard cannot be relocated in a given market area because billboard locations are unique and it is virtually impossible to separate location from the structure, even though the billboard is deemed personal property under the lease); Nat’l Adver. Co. v. Florida Dept. of Transp., 611 So.2d 566, 569-70 (Fla.Ct.App.1992) (concluding that billboard replacement cost was insufficient compensation where a billboard’s location was unique and it could not be relocated; the condemnor should have presented evidence of income in valuing the leasehold interest); City of Norton Shores v. Whiteco Metrocom, 205 Mich.App. 659, 517 N.W.2d 872, 873 (Mich.Ct.App.1994) (concluding that condemned leaseholds were income-producing property for which income capitalization method was a valid means of estimating market value, regardless of whether the billboards were trade fixtures or personal property); State of Minnesota v. Weber-Connelly, Naegele, Inc., 448 N.W.2d 380, 383, 384-85 (Minn.Ct.App.1989) (concluding that a state statute permits compensation for lost rental income, and that the income approach for appraising billboards is proper because the property was income producing and the billboards could not be relocated).

        Id. at 114, 993 P.2d at 67, n. 6.


author: GILBERTSON, Chief Justice. ZINTER, Justice

text:
    2008 SD 11
    STATE of South Dakota, Plaintiff and Appellee, v. Adrian FOOL BULL, Defendant and Appellant.
    No. 24281.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 6, 2007.
    Decided Feb. 6, 2008.

      Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Traci Smith, Office of the Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] On January 25, 2006, Adrian Fool Bull (Fool Bull) was indicted on one count of rape through the use of force, coercion, or threats in violation of SDCL 22-22-1(2). A jury trial commenced in the South Dakota Second Judicial Circuit on June 12, 2006. On June 15, 2006, the jury returned its verdict, finding Fool Bull guilty as charged. He was sentenced to 45 years in the South Dakota State Penitentiary. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On the night of January 20, 2006, Fool Bull walked from his home to the Top Hat, a drinking establishment in downtown Sioux Falls, South Dakota. While there, he encountered a friend, Morgan Lorang (Lorang), who was accompanied by R.B. Lorang introduced Fool Bull to R.B. as “Stoney.” According to R.B., the three sat at a booth and conversed for a time before Fool Bull left and walked away.

[¶ 3.] At Fool Bull’s trial, R.B. testified that around midnight she left the Top Hat and walked to her van, parked nearby on the street. R.B. stated that as she entered the van, Fool Bull, who was recovering from a knee injury and walked with a cane, appeared and asked for a ride. R.B. agreed and Fool Bull entered the van, sitting on the passenger side.

[¶ 4.] R.B. testified that after the two drove away, Fool Bull directed her to the home of his drug dealer. When they arrived, there were no lights on at the house. R.B. stated that Fool Bull grabbed the keys from the ignition and went to the door of the house. R.B. indicated that when Fool Bull returned from the house, he told her that he wanted to drive. R.B. testified that initially she refused to allow him to drive and that Fool Bull then punched her in the face. R.B. stated she then relented, moving to the passenger seat, and Fool Bull got into the driver’s seat and drove away.

[¶ 5.] R.B. testified that after taking control of the van, Fool Bull drove her to another neighborhood and parked in a location where the nearby streetlight was broken. R.B. alleges that at this point she attempted to leave the van, first reaching for her purse in the back seat. R.B. stated that as she reached for the purse, Fool Bull again punched her in the face, this time breaking her nose. R.B. indicated that Fool Bull then pushed her down between the two front seats and raped her from behind while punching her repeatedly in the back of the head and neck, threatening to stab her and telling her to “shut the fuck up” while she cried and pleaded with him to stop.

[¶ 6.] R.B. testified that after the rape, Fool Bull told her to clean herself up and then began driving erratically around town, eventually stopping at a mobile home park off Marion Road in Sioux Falls. Fool Bull took the keys out of the ignition and went up to one of the mobile homes. R.B. stated that she remained in the vehicle because she thought Fool Bull would find her if she tried to leave. Fool Bull returned to the van, and again drove away in an erratic manner.

[¶ 7.] At around 2:30 a.m. Fool Bull was stopped by Sioux Falls Police Officer Thomas Krull (Krull). Krull testified at trial that while he was speaking to Fool Bull, he looked across the interior of the van at R.B. and noticed her mouth the words “help me.” Krull asked to see the vehicle registration and proof of insurance. When R.B. failed to produce the documents, Krull removed Fool Bull from the van. R.B. indicated that when Krull returned to the van to speak to her, she told him that she had been beaten and raped by Fool Bull.

[¶ 8.] Fool Bull was arrested for rape. R.B. was taken to Sioux Valley Hospital for treatment of her injuries and to undergo a “rape kit” examination. R.B. was tested for sexually transmitted diseases (STD) and was found to have contracted an STD known as Chlamydia.

[¶ 9.] On January 25, 2006, Fool Bull was indicted on one count of second degree rape. On May 3, 2006, a hearing was held on Fool Bull’s motion for disclosure of “other bad acts” evidence. Fool Bull’s trial on the second-degree rape charge commenced on June 12, 2006. Fool Bull’s defense was based on mutual consent. The jury returned a guilty verdict on June 15, 2006, and on August 15, 2006, Fool Bull was sentenced to 45 years in the penitentiary.

[¶ 10.] Fool Bull raises five issues that we will consider on appeal:

1. Whether the trial court abused its discretion by admitting State’s evidence that R.B. had contracted a sexually transmitted disease.
2. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper testimony by Sioux Falls police officers.
3. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper testimony by R.B.’s emergency room treating physician.
4. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper statements by the State’s Attorney during closing argument.
5. Whether Fool Bull is entitled to a new trial based on prosecutorial misconduct.

STANDARD OF REVIEW

We presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard. The test for abuse of discretion “is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” If error is found, it must be prejudicial in nature before this Court will overturn the trial court’s evi-dentiary ruling. “Error is prejudicial when, in all probability ... it produced some effect upon the final result and affected rights of the party assigning it.”

State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544 (internal citations omitted). Trial courts have considerable discretion in granting or denying mistrials and determining the prejudicial effect of witness statements. State v. Buchhold, 2007 SD 15, ¶ 50, 727 N.W.2d 816, 828(citing State v. Anderson, 1996 SD 46, ¶ 21, 546 N.W.2d 395, 401) (citations omitted). Prejudicial error must be shown for a trial court to grant a motion for mistrial. Anderson, 1996 SD 46, ¶ 21, 546 N.W.2d at 401 (quoting State v. Myers, 464 N.W.2d 608, 609-10 (S.D.1990)) (quoting State v. Blalack, 434 N.W.2d 55 (S.D.1988)) (additional citation omitted). Prejudicial error sufficient to constitute grounds for a mistrial must in all probability have produced some effect upon the jury’s verdict that is concomitantly injurious to the substantial rights of the party assigning it. Id. (quoting Myers, 464 N.W.2d at 609-10) (quoting Blalack, 434 N.W.2d 55)) (additional citation omitted).

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the trial court abused its discretion by admitting State’s evidence that R.B. had contracted a sexually transmitted disease.

[¶ 12.] During her medical examination following the incident, Sioux Valley staff tested R.B. for sexually transmitted diseases. Two days later, the test results revealed that R.B. had contracted Chlamydia. Over Fool Bull’s objection, the trial court allowed the State to present evidence and elicit testimony about this fact. Fool Bull argues that he did not have an adequate opportunity to refute the inference that R.B. contracted Chlamydia from him. Moreover, he avers that evidence of R.B. having contracted Chlamydia is irrelevant since he does not dispute the fact that he had sexual intercourse with R.B., but rather contends that it was consensual. Thus, Fool Bull contends that admission of evidence about R.B. having Chlamydia is “other acts” evidence, as defined by SDCL 19-12-5 (Rule 404(b)), and only served to prejudice the jury against him.

[¶ 13.] Fool Bull’s argument that he did not have an adequate opportunity to refute the inference that R.B. contracted Chlamydia from him is without merit. During a trial recess, defense counsel stated that she had no intention of eliciting testimony from Fool Bull as to whether he had Chlamydia at the time in question and the record reflects that no such testimony was in fact elicited from him. However, the trial transcript reveals that defense counsel questioned R.B. about having contracted Chlamydia. R.B. testified that she had been in a monogamous relationship and that she did not have Chlamydia prior to the rape incident.

[¶ 14.] Moreover, Fool Bull’s challenge of the admission of evidence about R.B. having Chlamydia, based on relevancy, was not properly preserved for appeal. While defense counsel contested the admission of evidence pertaining to R.B. having Chlamydia during a pretrial conference, the objection was based on the timeliness of State’s notice of intent. During R.B.’s direct testimony, Fool Bull offered no objection as to the relevancy of the State’s questioning of her about having contracted Chlamydia. Not until the trial court recessed at the end of the first day’s proceedings, following R.B.’s testimony, did defense' counsel raise an objection based on relevance. See State v. Garton, 390 N.W.2d 61, 63 (S.D.1986) (holding that a defendant’s failure to raise a timely objection at trial, but instead waiting to object to State’s evidence until after the State had rested waived the issue on appeal) (citing State v. Big Head, 363 N.W.2d 556, 563 (S.D.1985); In re T.L.J., 303 N.W.2d 800, 806 (S.D.1981); State v. Reiman, 284 N.W.2d 860, 870 (S.D.1979); In re V.D.D., 278 N.W.2d 194, 197 (S.D.1979)); see also State v. Dirk, 364 N.W.2d 117, 123 (S.D.1985) (observing that the purpose of the requirement of a prompt objection is “to ensure that the trial court is given a fair opportunity to remedy the impropriety by striking the challenged testimony, promptly admonishing the jury, or taking whatever other action that may be appropriate in the circumstances”); Big Head, 363 N.W.2d at 556 (holding that the trial court’s refusal to grant the defendant’s motion for mistrial or to strike testimony made in chambers following the completion of testimony was properly denied because “it was too late to lock the barn door, the horses had departed”).

[¶ 15.] Assuming that Fool Bull had preserved the issue for appellate review, we find his argument on the merits to be unpersuasive. Penetration is a key element of second degree rape that the State must prove under SDCL 22-22-l(2). Fool Bull contends that by virtue of his mutual-consent defense, the State is compelled to stipulate that penetration occurred, thus precluding the introduction of other State’s evidence related to this element. However, it is a well-established rule that the government is not bound by a defendant’s offer to stipulate. State v. Steele, 510 N.W.2d 661, 674 (S.D.1994) (Miller, C.J., concurring in part and dissenting in part); see also State v. Huth, 334 N.W.2d 485, 489 (S.D.1983) (holding that crime photos were properly admitted despite the defendant’s admission and offer to stipulate because the State still possessed the burden of proving all elements of the charged offense and was entitled to present graphic proof of the relevant facts) (citations omitted); State v. Krana, 272 N.W.2d 75, 79 (S.D.1978) (holding that where the delivery, not quality, of truckloads of corn constituted the basis of the charged crime, the trial court properly admitted samples of the poor quality corn because the corn was res gestae of the crime and despite the defendant’s offer to stipulate to the truckloads of corn, the State was entitled to present its case as it wished).

[¶ 16.] In this case the chronology of the events that begin with Fool Bull’s arrival at the Top Hat on January 20, 2006, and end with his arrest by Krull were res gestae of the rape. So too were the graphic details of the rape incident; the emergency room medical report that evinced R.B.’s battered body and indicated the presence of Fool Bull’s semen and DNA inside of her; and the photographic exhibits taken of R.B. in the emergency room that depict the extent of her injuries. Furthermore, R.B. testified during the trial that she had been in a long term monogamous relationship. Therefore, the fact that shortly after the rape she was found to have contracted Chlamydia, was also res gestae of the crime and thus relevant to the State’s case. See State v. Bunger, 2001 SD 116, ¶ 11, 633 N.W.2d 606, 609 (observing that “[t]he law favors admitting relevant evidence no matter how slight its probative value”).

[¶ 17.] Finally, Fool Bull’s assertion that evidence of R.B. contracting Chlamydia was inappropriately admitted “other acts” evidence misinterprets our version of Rule 404(b) found under SDCL 19-12-5. The rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. The State is required to provide notice of intent to use such evidence so that the trial court, in determining admissibility, can balance the probative value of the evidence against the prejudice to the defendant. Mattson, 2005 SD 71, ¶ 18, 698 N.W.2d at 545.

[¶ 18.] As explained in the foregoing analysis, evidence that R.B. had contracted Chlamydia was res gestae of this crime, not any other crime, wrong or act. Therefore, Rule 404(b) did not apply and we find

no error in the trial court’s decision to allow the State to present such evidence.

[¶ 19.] 2. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper testimony by Sioux Falls police officers.

[¶ 20.] During the State’s direct examination of Krull, the following exchange took place:

STATE: And you also talked about a “10-15, number two”?
KRULL: Yeah.
STATE: What’s that?
KRULL: “10-15” is a person in custody, and “number two” is our code for ... rape_ [Ten]-15, number two, that tells the officer that I want him to take the individual into custody and why.
STATE: So you were saying in ... layman terms, that you wanted the other officer to take who into custody and why?
KRULL: I was saying put handcuffs on Mr. Fool Bull because he may have been involved in a number two.
Or in a rape, ...
That’s for safety, both his and ours. I wanted to get the cane away from him. He may have just been involved in a violent crime, I don’t want him to have a weapon in hand, and as I said before, I am familiar with the gentleman and I wanted him in handcuffs.

(Emphasis added).,

[¶21.] At the conclusion of the State’s case-in-chief, defense counsel moved for a mistrial in part on the basis of Krull’s statement that he was familiar with Fool Bull and that the statement was somehow prejudicial thereby circumventing his right to a fair trial. However, defense counsel raised no objection to the statement during Krull’s testimony. Therefore, the matter is waived on appeal. See Garton, 390 N.W.2d at 63 (citing Big Head, 363 N.W.2d at 563; T.L.J., 303 N.W.2d at 806; Reiman, 284 N.W.2d at 870; V.D.D., 278 N.W.2d at 197).

[¶22.] The State also called on Sioux Falls Police Officer Steve Redmond (Redmond) to testify during its case-in-chief. Redmond responded to Krull’s request for back-up after Fool Bull and R.B. had been stopped. During Redmond’s testimony, the following exchange took place:

STATE: What is [Fool Bull’s] response to the fact that he is being arrested for rape?
REDMOND: He was upset.
STATE: Verbally, what does he say?
REDMOND: That he always gets charged with this, um, I don’t—
DEFENSE: Objection.

(Emphasis added).

[¶ 23.] On May 3, 2006, the trial court conducted a motions hearing wherein Fool Bull sought to suppress Rule 404(b) “other acts” evidence comprising convictions for misdemeanor false impersonation and felony conspiracy to commit aggravated assault. The trial court agreed to suppress the misdemeanor, but, in reference to the felony, granted the State the right to inform the jury of his conviction and the date thereof. The State agreed and the court then ordered that there be notice and hearing of any other 404(b) evidence that the State should seek to introduce. Fool Bull argues that Redmond’s remark constitutes Rule 404(b), “other acts” evidence that required notice and hearing prior to admission. We agree. Yet, while the remark was inappropriate, we cannot construe that it was injurious to Fool Bull’s substantial right to a fair trial. Since Fool Bull cannot show how the remark rises to the level of prejudicial error, it does not constitute a basis for mistrial. See Anderson, 1996 SD 46, ¶21, 546 N.W.2d at 401 (reiterating that an actual showing of prejudice must exist in order to justify a mistrial) (quoting Myers, 464 N.W.2d at 609-10) (quoting Blalack, 434 N.W.2d 55)) (additional citation omitted). Hence, we find no abuse of discretion.

[¶24.] 3. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper testimony by R.B.’s emergency room treating physician.

[¶ 25.] During its case-in-chief, the State called Dr. Janelle Simpkins (Simp-kins) to testify. Simpkins was the Sioux Valley Hospital emergency room physician on duty when law enforcement transported R.B. to the hospital for examination. Fool Bull objected to several statements by Simpkins during her testimony. He subsequently moved for a mistrial alleging the statements to have violated his right to a fair trial.

[¶ 26.] Simpkins had been an emergency room physician at Sioux Valley for 12 years and estimated that on average she had treated two rape victims per month. Following the examination of R.B., medical staff completed a report, to which Simp-kins contributed, based on evidence collected in a “rape kit.” The information was provided to Fool Bull prior to March 9, 2006. The “rape kit” and report were received into evidence as State’s exhibits. Simpkins offered testimony relevant to the “rape kit” and information that had been entered in the report.

[¶ 27.] Simpkins testified in detail about the nature of R.B.’s injuries. Her extensive injuries included bruises around the right side of the face and eye, a cut lip, a broken nose, a swollen scalp and bruises to the back of the head and neck, bruising on the left breast and bruising on the right thigh. However, R.B. had no sign of vaginal injury. Simpkins estimated that in her experience, about half of rape cases do not result in vaginal injury. She indicated that it is particularly common for there to be no injury to the vaginal area in women who are sexually active or have given birth to a child. Despite this explanation, Fool Bull objected to Simpkins’s assessment that R.B. “obviously, was a victim of vio-lenee[.]”

[¶ 28.] Simpkins referred to the bruising on R.B.’s right leg as “grab marks.” She stated that the grab marks were indicative of those left by “finger prints.” Over Fool Bull’s objection, Simpkins stated that such grab marks can be caused by someone forcibly attempting to spread a person’s legs. Fool Bull alleges that Simp-kins’s statement was irrelevant and merely intended to inflame juror passion because he argues there was no evidence that R.B.’s legs were forcibly opened since she contends to have been raped from behind.

[¶ 29.] While the State offered Simpkins’s testimony as an observer in the emergency room, her testimony as to R.B. being a victim of violence and the nature of the grab marks amount to expert testimony. If it will assist the trier of fact to understand the evidence or to determine a fact in issue, a qualified expert by knowledge, skill, experience, training, or education, may testify to specialized knowledge in the form of an opinion or otherwise. SDCL 19-15-2 (Rule 702). Our analysis in State v. Andrews, 2001 SD 31, 623 N.W.2d 78 is instructive to the analysis of the issue raised here by Fool Bull.

[¶ 30.] In Andrews, the State was permitted to introduce non-expert testimony from a law enforcement officer about his personal observations as to the general operating characteristics of a firearm used in a homicide. Id. ¶ 15. The defendant asserted that the firearm had discharged accidentally. Id. ¶ 14. During a pretrial hearing, the trial court limited the law enforcement officer’s testimony by denying the State’s request to allow the officer to offer a technical opinion as to the likelihood of accidental discharge based on his experience with firearms. Id. ¶ 15. Despite the trial court’s ruling, the law enforcement officer was permitted to testify at length during the trial as to his conclusions about the likelihood of accidental discharge even though he had no independent knowledge of the shooting and the State had not provided the defendant with the officer’s written findings within a reasonable time before trial. Id. ¶¶ 14, 16, 18. We found that under these circumstances, the trial court erred in allowing the law enforcement officer, without independent knowledge of the crime, to offer technical opinion testimony. Id. ¶ 19. The facts of the instant case are distinguishable.

[¶31.] The record indicates that Fool Bull was provided all medical records related to R.B.’s treatment at least three months in advance of trial. Simpkins’s assessment that R.B. was the victim of a violent crime and her description of the grab marks on RJB.’s leg, were derived from first-hand knowledge obtained during the emergency room examination. Simp-kins’s possible explanation of why R.B., who was in a sexually active monogamous relationship and had given birth to two children, had not sustained vaginal injury, even though she claimed to have been raped, was based on her experience as a doctor and emergency room physician dealing with rape victims on a regular basis. Similarly, her explanation that the frequent cause of grab marks, like those on R.B.’s leg, being caused by forcible prying of the legs was also based on her experience as a physician.

[¶ 32.] On redirect, Simpkins testified that R.B. identified her assailant as “Stoney.” This testimony related to information compiled in a data sheet at the time of the emergency room examination. The nature of Simpkins’s redirect testimony in this regard was as follows:

STATE: I’m going to show you what is marked as State’s Exhibit No. 21.
[This] actually, came out of the rape kit?
SIMPKINS: Yes.
STATE: Who completed that portion of the victim’s medical history?
SIMPKINS: I did.
STATE: And have you indicated on there whether or not she told you the name of her assailant?
SIMPKINS: She didn’t know the name. She said he had a nickname of “Stoney.”
STATE: So as you look at these pages, these are the pages that you completed?

[¶ 33.] At this time, the trial court asked the attorneys to step forward for a bench conference. Although the bench conference was conducted off the record, Fool Bull alleges that the trial court warned the State that if Simpkins continued to offer her opinion as to whether he had raped R.B., a mistrial would be granted.

[¶ 34.] With respect to this redirect testimony, we do not find that it was an expression of Simpkins’s opinion as to Fool Bull’s guilt or in any way bolstered R.B.’s account of the incident. See State v. Raymond, 540 N.W.2d 407, 409-10 (S.D. 1995) (Raymond 1) (noting that “ ‘[t]he general rule ... is that one witness may not testify as to another witness’ [sic] credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness’ ”) (quoting McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989); accord State v. Logue, 372 N.W.2d 151, 157 (S.D.1985); SDCL 19-15-2). Rather, it was, if anything, a harmless reiteration of testimony that had already been given at length by R.B. and was obviously at issue since a trial had been convened. See State v. Thomas, 381 N.W.2d 232, 240 (S.D.1986) (holding, where a witness properly testified that she had been raped by the defendant and a psychologist thereafter testified that the witness had told him the same thing, the psychologist’s testimony was merely cumulative to the witness’s testimony and thus not prejudicial to the defendant). Moreover, an impartial expert may testify to a report prepared by himself or herself or with information provided by others so long as it is provided to the adverse party a reasonable time before trial. SDCL 19-15-5.2 (Rule 705(b)); SDCL 19-15-6 (Rule 705(c)). Simpkins was citing to State’s Exhibit No. 21 that included the “Victim’s Medical History And Assault Information” data sheet from the “rape kit” that she compiled during R.B.’s emergency room examination. “Number 19” on the data sheet provides a space on which to enter the “Assailant’s Name.” As such it was an appropriate reference by Simpkins to a report as provided under Rules 705(b) and 705(c).

[¶ 35.] Over Fool Bull’s hearsay objection, Simpkins also testified to the account of the incident as told to her by R.B. Simpkins indicated that R.B. expressed to her that she feared she might have been killed had Fool Bull not been stopped by the police. We find that the trial court erred by allowing this testimony. However, the trial court’s error does not constitute a basis for reversal given the overwhelming evidence against Fool Bull. Moreover, the State’s photo exhibits of R.B. and medical record exhibits, testified to by Simpkins, provided a reasonable evidentiary basis upon which the jury could conclude R.B.’s concern was sincere.

[¶36.] Finally, Fool Bull objected to Simpkins’s unsolicited, inadvertent statement, “I am absolutely convinced that what she said took place took place.” This statement did invade the province of the jury. See Raymond I, 540 N.W.2d at 409-10 (citations omitted). Fool Bull cites Raymond I, State v. Logue, 372 N.W.2d 151 (S.D.1985), and State v. Jenkins, 260 N.W.2d 509 (S.D.1977) to support his assertion that this infringement necessitated a mistrial, thus requiring this Court to reverse. However, the manner in which the statements were made in the cases cited by Fool Bull and the actions of the respective trial courts are distinguishable from the instant case.

[¶ 37.] In Raymond I, the defendant was accused of sexual contact with a minor. 540 N.W.2d at 408. The allegations came to light when the victim informed a social worker about an incident, during which the defendant “touched her.” Since the victim was a minor, younger than 10 years of age, the State filed a notice of intent to offer the child’s incriminating hearsay statements made to social workers. At a pre-trial hearing, the trial court allowed the hearsay testimony, conditioned on the State’s expressed intent that the social workers’ testimony would be limited to the hearsay. Contrary to its representation, at trial the State elicited testimony from one of the social workers that went to the veracity of the minor child’s statements. The social worker testified that the child’s statements were credible. Id. at 408 n. 4. The defendant objected and the record reflected that the trial court agreed with the objection. Id. at 408. Nevertheless, it failed to admonish the jury to disregard the statement or reiterate the roles of witnesses and the jury. Subsequently, the State elicited a second social worker’s opinion about the truthfulness of the child’s statements. Id. at 409. Thereafter, the defendant’s motion for mistrial was denied and he was convicted. In reversing the trial court, we concluded that the social workers’ testimony bolstered the credibility of the minor child and denied the defendant his right to a fair trial. Id. at 410.

[¶ 38.] The defendant in Logue, was also convicted of sexual contact with a minor child. 372 N.W.2d at 155. At trial, the State called a social worker to testify that she had interviewed the child. Id. at 154. Over the defendant’s objection, the trial court allowed the State to question tive social worker as to her opinion about where the minor child’s knowledge of sexual matters had been obtained. Id. at 155. The social worker stated her opinion was that the child’s knowledge had been obtained from the defendant. In reversing the defendant’s conviction, this Court stated that the social worker’s testimony was objectionable “not ‘merely because it embraced an ultimate issue of fact,’ ” but more significantly because it “lent a stamp of undue legitimacy” to the credibility of the minor child. Id. at 157.

[¶ 39.] The defendant in Jenkins was convicted of murder. 260 N.W.2d at 511. The defendant conceded that he had killed the victim. Id. at 513. The only question presented to the jury was whether he had been forced to do the killing by others. At trial, the State called a psychologist to testify, who had interviewed the defendant. Over the defendant’s objection, the trial court allowed the State to question the psychologist as to his opinion about whether the defendant was truthful in his claim that the killing had been forced. The psychologist testified that he believed the defendant’s claim was unfounded. In reversing the defendant’s conviction we opined that under the circumstances, allowing the defendant’s conviction to stand “would virtually abolish the historic and cherished concept that a jury of twelve fellow citizens is the proper tribunal for judging credibility.” Id.

[¶ 40.] Unlike each of the cases cited by Fool Bull, where the State elicited the objectionable testimony, the comment of Simpkins, regarding her assessment of R.B.’s account of the rape, was inadvertent, and unsolicited as the following excerpt from the trial transcript reveals:

STATE: In rape examinations that you’ve performed over 12 years, how often did you see injuries to a woman’s vagina.
SIMPKINS: I think less than half of the time.
STATE: So when you didn’t see injuries to [R.B.’s] vagina, how, if at all, did that impact your diagnosis?
SIMPKINS: It didn’t at all. She, obviously, was a victim of violence, multiple bruising, broken nose, a scalp injury, and had discharge and hair consistent with ejaculation. I am convinced that what she said took place took place.
DEFENSE: Objection. Your Honor, may we approach?
COURT: Yes.

[¶ 41.] Additionally, unlike each of the cases cited by Fool Bull, the trial court in the instant case issued a lengthy admonition to the jury following Simpkin’s objectionable opinion. Immediately after the exchange transcribed in the preceding excerpt, the trial court conducted a bench conference with the attorneys. Thereafter, the trial court issued the following admonishment.

Members of the jury, the doctor is here to tell us about medical things. It’s up to the jury to decide what happened. As I said to you yesterday about people opinion’s [sic] who have not sat through the trial, they are not worth as much as the opinion of your fellow jurors. So I am going to ask the jury, and I am going to require the jury, to disregard the statement that Dr. Simpkins just made that she’s convinced that what [R.B.] said did happen. It’s your decision, members of the jury, to decide what happened. It is the doctor’s role to give us medical testimony. That went beyond medical testimony, and that is why I am telling the jury not to disregard all of her testimony, just that final statement that she believes that something violent and bad happened here. That is completely up to the jury. So I am requesting that you disregard that statement....

[¶ 42.] It is unclear what if any limiting instructions that the juries in the cases cited by Fool Bull took with them into deliberations. However, in the instant case, while the trial court later denied defense counsel’s motion for mistrial on this basis, it offered to consider a jury instruction addressing defense counsel’s concerns that Simpkins’s remarks may have affected Fool Bull’s right to have the jury judge the credibility of R.B.’s testimony. The following instruction, offered by defense counsel, was settled as jury instruction # 27, entitled “WHETHER THE CRIME CHARGED HAS BEEN PROVEN BEYOND A REASONABLE DOUBT IS A MATTER FOR THE JURY TO DECIDE:”

You are the sole and exclusive judges of all questions of fact and the credibility of the witnesses and the weight to be given the testimony of each of them. In determining the credit to be given any witness you may take into account ability and opportunity to observe, memory, manner while testifying, any interest, bias, or prejudice, and the reasonableness of the testimony considered in the light of all the evidence in the case. A witness may not, however, express an opinion as to whether a crime; in this case, the crime of rape, has occurred. To the extent that any witness in this case has expressed such an opinion, you must disregard that opinion. Whether the elements of rape in the second degree have been proven beyond a reasonable doubt is a matter for this jury to decide.

(Emphasis added).

[¶ 43.] Simpkins’s statement was inadvertent and unsolicited by the State. The trial court promptly reacted to the statement. Thereafter, it took all reasonable measures to ensure that any potential effect the statement might have had on the jury was minimized by issuing a clear admonition, see Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989) (reiterating our settled law that we assume juries accept admonitions), and including defense counsel’s proposed jury instruction.

[¶ 44.] Based on its assessment of the effect or lack thereof that Simpkins’s statement had on the jury, the trial court denied Fool Bull’s motion for mistrial. Therefore, in lieu of any other evidence that Simpkins’s statement unduly prejudiced the jury, thus denying Fool Bull his right to a fair trial, we will not substitute our judgment for that of the trial court, which was present in the courtroom with the jury. See State v. Havens, 264 N.W.2d 918, 923 (S.D.1978) (affirming the trial court’s decision not to grant a mistrial for objectionable argument by the State and acceding to its judgment lacking the defendant’s showing of any actual bias or prejudice because “[t]he trial [court] was on the scene, had heard the arguments and had the opportunity to note whether they had any apparent effect on the jury”).

[¶ 45.] 4. Whether the trial court abused its discretion by denying Fool Bull’s motion for mistrial on grounds of improper statements by the State’s Attorney during closing argument.

[¶ 46.] At trial, defense counsel questioned R.B. about her boyfriend not believing that she had been raped when she first called him shortly after Fool Bull’s arrest. Fool Bull alleges that the State made objectionable remarks during closing argument that were aimed at assuaging any reasonable doubt about his guilt raised during this line of questioning that warranted the trial court’s granting his motion for mistrial. He argues that the following remarks were an attempt to appeal to the “community conscience,” and an invitation to the jury to put themselves into R.B.’s situation:

Think about it, members of the jury. Think about if you’ve ever been in a situation even remotely close to that. However, if in an automobile accident, or say you’ve been hit. [Y]ou’ve been hit in an automobile accident and under the stress of this moment and you call up your spouse and you tell your spouse you’ve been in an ... automobile accident or just tell him or her you were in an automobile accident and I am okay? I was driving on 41st street and this car rear ended me. I’ll talk to you about it later. I was struck one time in my car. The van came up to the window, you know, I can’t talk to you about it right now. I am so angry right now, I can’t talk to you about it. I was so upset that I knew better to talk about it right then, but try to put yourself in a stressful situation and in a situation where you’ve been the victim of a rape or some other similar situation where you’ve been the victim of an automobile accident.

Following defense counsel’s objection, which was overruled by the trial court, the State continued:

Think about how you would relate. How would you relate to somebody when you explain what happened? Would you go through every single detail or a quick version because you’re a victim, you’re hurt, perhaps on the way to go to the hospital?

[¶ 47.] “Arguments that invite the jurors to put themselves in the shoes of a victim are generally improper.” State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988) (citation omitted). However, a prosecutor “may make remarks, not based on the record, which concern matters of general knowledge or experience. State v. Smith, 1999 SD 83, ¶46, 599 N.W.2d 344, 354 (emphasis added) (citation omitted).

[¶ 48.] The State’s remarks do not seem intended to evoke the emotional response that results when a jury is asked to put itself in the shoes of the victim as the alleged criminal act is being perpetrated and for which we might conclude undue prejudice could result. However, it appears that the State’s remarks were an attempt to evoke recollections of a general incident so as to project the jury into the kind of stress that R.B. experienced and that may consequently have affected her actions following the rape. Fool Bull avers the following remarks also warranted mistrial:

[T]he Defendant in his story about what happened that night, and bear in mind, he has had five months to work on this story, and I want you to remember how he told his story. The defense attorney didn’t ask questions, the Defendant took the stand and started on his story, and kept going and going and going, there were very few questions. At one point and time, the Defense attorney interrupted him with a question and he was, kind of, like, you know, hey, but—

Following defense counsel’s objection at this point that was overruled by the trial court, the State continued:

He was so adamant about finishing what he wants to talk about right then because he was so prepared with his story — don’t interrupt me. I want to tell my story before I forget what I want to say.

[¶49.] Although the State may comment on the credibility of witnesses during final argument, see Jenner v. Leapley, 521 N.W.2d 422, 428 (S.D.1994) (citing State v. Howard, 323 N.W.2d 872, 874 (S.D.1982)), here again the State appears to attempt to project the jury into the mindset of another — in this case Fool Bull during his testimony.

[¶ 50.] While we do not condone the kind of prosecutorial conduct evinced by these remarks, the weight of evidence against Fool Bull was otherwise overwhelming. Under the circumstances, Fool Bull fails to show how these remarks prejudiced his right to a fair trial. Therefore, we will not disturb the jury’s verdict on this basis.

[¶ 51.] 5. Whether Fool Bull is entitled to a new trial based on prosecuto-rial misconduct.

[¶ 52.] Fool Bull alleges prosecutorial misconduct on three grounds:

1. The impropriety of the State’s line of questioning of Simpkins in regard to “grab marks” on R.B.’s leg.
2. The impropriety of certain remarks by the State during closing argument.
3. The impropriety of statements made by the State at Fool Bull’s sentencing hearing.

[¶ 53.] We have addressed Fool Bull’s claims of impropriety in regard to the “grab marks” line of questioning. See Issue 3. The remarks during closing argument that Fool Bull alleges were improper were addressed under Issue 4. Therefore we need not readdress his first two claims of prosecutorial misconduct.

[¶54.] Fool Bull’s third ground for prosecutorial misconduct arises from an allegation made by the State during the sentencing hearing that he had committed a murder when he was 12 years old. When defense counsel objected, the trial court assured that the remark would not be considered in the determination of sentence. The State subsequently apologized for the remark.

[¶ 55.] While we agree the State’s remark was improper, it has no relevance to the issue of whether he received a fair trial since he already had been convicted by the time it was made. As to whether the remark affected his sentence, which Fool Bull does not argue on appeal and we would not otherwise consider, Fool Bull offers no reason why we should question the sincerity of the trial court. The grounds cited by Fool Bull upon which he alleges prosecutorial misconduct, justifying a new trial are without merit.

[¶ 56.] We have examined the remaining issues raised by Fool Bull and find them to be similarly without merit.

[¶ 57.] Affirmed.

[¶ 58.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

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

ZINTER, Justice

(concurring).

[¶ 60.] I concur. I write to note my view of Dr. Simpkins’s testimony repeating the victim’s statement that the defendant (“Stoney”) was the perpetrator. See supra ¶¶ 32-34. In my view, contrary to the Court, the testimony was an inadmissible prior consistent statement that did bolster the victim’s account of the incident. Nevertheless, I concur because it was a harmless reiteration of the identical information taken from Exhibit 21 (the rape kit).

[¶ 61.] I also write to note that, contrary to the Court’s view (see supra ¶ 34), SDCL 19-15-5.2 and SDCL 19-15-6 (Rule 705(b) and (c)) are not intended to permit the admission of expert testimony. Those statutes are part of the Uniform Composite Reports as Evidence Act. SDCL 19-15-8 (Rule 705(e)); Hilde v. Flood, 81 S.D. 25, 33, 130 N.W.2d 100, 104 (1964). Therefore, these statutes are only intended to permit the admission of a “written report or findings of fact prepared by an expert.” SDCL 19-15-5.2 (Rule 705(b)). They are not authority to justify admission of Simp-kins’s testimony. Again, however, I concur because Dr. Simpkins’s testimony merely reiterated what was in the report, which was admitted into evidence.

      . Under SDCL 22-22-1(2), rape is defined as: "an act of sexual penetration accomplished with any person ... [tjhrough the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution[J"

      . The record does not reveal that Fool Bull made an actual offer to stipulate. Defense counsel merely objected to the introduction of evidence of R.B. having Chlamydia based on Fool Bull's mutual-consent defense.

      . State's Exhibit No. 21 was a collection of data compiled by Simpkins during R.B.’s emergency room examination.

      . The referenced page is entitled, "Victim's Medical History And Assault Information.”

      . Rule 705(b) provides:
      A written report or finding of facts prepared by an expert not being a party to the cause, nor an employee of a party, except for the purpose of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from written information furnished by the cooperation of several persons acting for a common purpose, shall, in so far as the same may be relevant, be admissible when testified to by the person, or one of the persons, making such report or finding without calling as witnesses the persons furnishing the information, and without producing the books or other writings on which the report or finding is based, if in the opinion of the court, no substantial injustice will be done the opposite party.
      SDCL 19-15-5.2

      . Rule 705(c) provides:
      The report or finding described in [Rule 705(b)] shall not be admissible unless the party offering it shall have given notice to the adverse party a reasonable time before trial of his intention to offer it, together with a copy of the report or finding, or so much thereof as may relate to the controversy, and shall also have afforded him a reasonable opportunity to inspect and copy any records or other documents in the offering party’s possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based, except that it may be admitted if the trial court finds that no substantial injustice would result from the failure to give such notice.
      SDCL 19-15-6.

      . We also note that on this basis, Simpkins’s testimony as to the identity of the assailant was also admissible as a business record and thus hearsay exception under SDCL 19-16-10 (Rule 803(6)). Rule 803(6) provides:

        A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4, even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Id. (emphasis added).

      . South Dakota adopted FRE 704, the ultimate issue doctrine pertaining to opinion testimony, in 1993 with the enactment of SDCL 19-15-4. See S.D. Sess. Laws 1993 ch. 401. SDCL 19-15-4 provides:
      Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (Emphasis added). As this analysis of our case law shows, the propriety of opinion testimony ends where the fact finder’s purview to assess the credibility of witnesses begins.