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201 4 S.D. 58 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA , Plaintiff and Appellee ,

v. SEAN WHISTLER , Defendant and Appellant

.
* * * * APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA * * * * THE HONORABLE RANDALL L. MACY Judge * * * * MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre , South Dakota Attorney s for plainti ff and appellee

.
G. MATTHEW PIKE of Lawrence County Public

Defender’s Office Deadwood , South Dakota Attorneys for defendant and appellant

.
* * * * ARGUED ON MARCH 24 , 2014 REASSIGNED APRIL 18, 2014 OPINION FILED 

### 07 / 30 / 14# 2658 8

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- GILBERTSON , Chief Justice (on reassignment). [¶ 1. ] Defendant appeals his convictions for possession of a controlled substance in violation of SDCL 22

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- 5 (2012) and ingestion of a substance for the
p ur pose of becoming intoxicated in violation of SDCL 22

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- 15 . He challenges South Dakota’s statutory scheme defining a controlled substance to include a n altered state of a drug or substance absorbed into the human body . He also alleges insufficient evidence to prove venue, and assert s error in t he circuit court’s jury instructions. We affirm. B ackground [¶ 2. ] On March 9, 2012, Spearfish Police Off icer Aaron Jurgenso n , followed by Officer Colin Simpson, saw a pick up traveling on Main Street in Spearfish during the early morning hour s with only its running lights on . The officers initiated a traffic stop

. Officer Jurgenson approached the pickup and identified the driver as Sean Whistler. Dispatch reported that Whistler’s driver’s license was suspended. Officer Jurgenso n asked Whis tler to speak with him in his patrol car. Once in the car, the officer observed signs of alcohol cons umption and smelled the odor of marijuana. After Whistler failed certain sobriety tests, Officer Jurgenso n placed him under arrest for driving under th e influence , possession of marijuana, and possession of drug paraphernalia

. A search of Whistler’s person incident to arrest uncovered a bag of marijuana in one of Whistler’s pants pockets and loose marijuana leaves in Whistler’s coat pocket. Officer Simps on later conducted an inventory search of Whistler’ s pickup , d uring which he seized marijuana leaves and a package of rolling papers.# 2658 8

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- [¶ 3. ] A t the police station, Whistler pr ovided urine and blood samples. The test of his blood sample reveale d a blood alcohol content of .221. A grand jury indicted Whistler for alternative counts of driving while under the influence of alcohol or driving with .08 percent or more by weight of alcohol in the blood , possession of marijuana, and ingesti on of a sub stance other than alcohol for the purpose of becoming intoxicated

. After the results of the urinalysis revealed the presence of a metabolite of cocaine, a superseding indictment add ed the charges of possession of a controlled substance (cocaine) and posse ssion of a suspended license. [¶ 4. ] At the jury trial , Officers Jurgenso n and Simpson testified about the stop. Forensic examiner Richard Wold testified that the plant material retrieved from Whistler’s person and pickup tested to be marijuan a. Forensic chemist Kathryn Engle told the jury that Whistler’s urine tested positive for the pre s en c e of the metabolites of marijuana and cocaine. She said that Whistler’s urine sample contained 0.90 micrograms per milliliter of benzoylecgonine, the maj or metabolite of cocaine. She explained that this cocaine metabolite could remain inside the body for approximately three days and that it is impossible to determine from a urinalysis how long ago someone had ingested the cocaine. [¶ 5. ] At th e close of the State’s case, Whistler moved for a judgment of acquittal on all charges. The court granted Whistler’s motion on the charges of driving under suspension and possession of drug paraphernalia. During the settl ing of the jury inst ructions, Whi stler objected to I nstruction 13, which stated: “Possession occurs if a person knowingly possesses an altered state of a drug or substance absorbed into the human body , ” and to I nstruction 17, which stated: “In a# 2658 8

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- charge of knowing possession of a controlle d substance, a positive urinalysis that reveals the presence of a controlled substance in a defendant’s urine may be sufficient in and of itself to support a conviction.” The court denied Whistler’s objections and submitted the case to the jury. The jury returned a verdict of guilty on all counts. The court sentenced Whistler to four years in prison, suspended upon serving eighty days in jail and abiding by certain terms and conditions. [¶ 6. ] On appeal, Whistler asserts that prosecution for possession in violation of SDCL 22

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- 5 (2012) , based solely on the presence of a metabolite of a controlled substance in urine , is contrary to legislative intent . He believes an ingestion conviction precludes a possession conviction on the same substance and constitutes double jeopardy

. He also contends that the State failed to prove venue. Finally, Whistler argues that the court committed reversible error in instructing the jury , because Whistler assert s that Instructions 13 and 17 remov ed the State’s burden of proving that Whistler knowingly possessed a controlled substance. A nalysis and Decision [¶ 7. ] Whistler first argues that South Dakota’s ingestion statute, SDCL 22

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- 15 , precludes a conviction for possession under SDCL 22

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- 5 (2012) when the only evidence is a positive urinalysis. Statutory construction is a question of law reviewed de novo

. State v. Schroeder , 2004 S.D. 21, ¶ 5, 674 N.W.2d 827, 829 (citation omitted). Whistler concedes that we specifically held in Schroeder that a defendant could be convicted of unauthorized possession of a controlled substance when the only evidence of possession is from the ingested or absorbe d substance in the defendant’s urine. See id

. ¶ 14

. Yet he claims that Schroeder did not address# 2658 8

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- the s pecific issue he presents for review : whether a conviction for ingestion precludes a conviction for possession

. See id. ¶ 9 (“There is still no need to decide this related issue of whether an ingestion statute precludes a conviction for possession when th e only eviden ce is a positive urinalysis.”). Therefore , Whistler asserts that Schroeder need not be overruled to decide this issue

. In support of his claim t hat a conviction for ingestion precludes a conviction for possession, W histler cites cases from ot her jurisdictions . H e contends that South Dakota is the only
state in the nation that makes the crime of possession by ingestion a felony and that doing so “bends decades of common law rule beyond its breaking point.” [¶ 8. ] It is within the p rovince of the Legislature to define wh at conduct constitutes a crime in this State

. State v. Burdick , 2006 S.D. 23, ¶ 18, 712 N.W.2d 5, 10. “We pass only on the permissible scope of legislative regulation, not its wisdom.” Meinders v. Weber , 2000 S.D. 2 , ¶ 28, 604 N.W.2d 248, 260. Indeed, “[t]he separation of powers would be meaningless if the judiciary were able to create exceptions to a criminal law based upon its notion of fairness.” Burdick, 2006 S.D. 23, ¶ 18, 712 N.W.2d at 10. Here, the Legis la ture clearly an d unambiguously defined the crime of unauthorized possession of a controlled substance under SDCL
22

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- 5 ( 2012 ) to include the possession of “ an altered state of a drug or substance listed in Schedules I through IV absorbed into the human b ody [.]” SDCL 22

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- 1(1). [¶ 9. ] Still , Whistler insists that the Legislature never intended SDCL 22

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- 5 (2012) to allow prosecution for possession based solely on the presence of a metabolite in the human body , and therefore, his conviction s hould be reversed

. He directs us to a record of the hearing before the Judiciary Committee of the South# 2658 8

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- Dakota House of Representatives related to the 2001 amendment. Relying on this record, Whistler asks us to reinterpret what the Legislature meant when it amend ed SDCL 22

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- 1(1) in 2001. “ This Court does not, however, review legislative history when the language of the statute is clear. ” Bertelsen v. Allstate Ins. Co. , 2009 S.D. 21, ¶ 15, 764 N.W.2d 495, 500 (citing Clark Cnty

. v. Sioux Equip. Corp. , 2008 S

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. 60, ¶ 28, 753 N.W.2d 406, 417 ). Because a plain reading of the statutes at issue reveals that nothing precludes a conviction of unauthorized possession when the controlled substance is ingested and thereby absorbed into the human body , we reject Whistler’s argument

. [¶ 10. ] Whistler also contends that he faced double jeopardy by being convicted of both possession of a controlled substance, by way of an altered state of cocaine absorbed into the body, 1 and ingesti on of a substance ot her than alcohol for the purposes of becoming intoxicated

. 2 He argues that both of these convictions rested upon the same evidence: the presence of a metabolite of cocaine in his body. However, a t trial, the jury heard evidence that Whistler smelled of m arijuana, that loose marijuana leaves were on his person and in his pickup, and that his urine tested positive for the metabolite of marijuana. T he jury could have concluded that Whistler ingested marijuana , a conclusion that would not p reclude a separate conviction for possess ion of the metabolite of cocaine . Hence, we need not address

1

. SDCL 22

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- 5 (2012); SDCL 22

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- 1(1). 2

. SDCL 22

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- 15.# 2658 8

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- in this case whether convicting a defendant of both possession and ingestion of cocaine, stemming from a single act of ingesting cocaine, violates the constitutional
pro hibition against double jeopardy. See generally Blockburger v. United States , 284 U.S. 2 9 9 , 52 S. Ct. 180, 76 L. Ed. 306 (1932). [¶ 11. ] Whistler next argues that venue for the crime of unauthorized possession cannot be proved by the mere prese nce of a metabolite of a controlled substance in one’s urine , and therefore, the State presented insufficient evidence that he possessed cocaine in Lawrence County, South Dakota

. He contends that the Legislature was without authority to statutorily create venue for the crime of ingestion to include where the substance was detected in the body

. See SDCL 22

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- 15. [¶ 12. ] In all criminal prosecutions, the defendant has a constitutional right to be tried by a jury in the county where the crime was alleged to have been committed. S.D. Const. art VI, § 7; SDCL 23A

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- 3 (Rule 18) . Venue must be shown by the evidence and need only be demonstrated by a preponderance of the evidence

. See State v. Iwan , 2010 S.D. 92, ¶ ¶ 8

- 9, 791 N.W.2d 788 , 789 (citing State v. Greene , 86 S.D. 177, 192 N.W.2d 712, 183 (1971)) . Here, because a controlled substance is defined to include the altered state of a drug absorbed into the human body , venue was established for the crime of unauthorized possession in violation of SDCL 22

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- 5 (2012) through the evidence that Whistler possessed the altered state of cocaine absorbed into his body in Lawrence County, South Dakota. Venue was also established for the crime of intentional ingestion of a substance for purposes of becomin g intoxicated in violation of SDCL 22

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- 15 , because the odor of marijuana# 2658 8

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- was detected on Whistler in Lawrence County, he possessed marijuana leaves on his person in Lawrence County , and the metabolite of marijuana was detected in his urine

. [¶ 13. ] Finally , Whistler argues that the trial court erred in submitting Instructions 13 and 17 to the jury. “A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial
court ’ s decision to grant or deny a particular instruction under the abuse of discretion standard.” State v. Hauge , 2013 S.D. 26, ¶ 17, 829 N.W.2d 145, 150 (quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 ). “ However, no court has discretion to give incor rect, misleading, conflicting, or confusing instructions [.] ” State v. Zephier , 2012 S.D. 16, ¶ 9, 810 N.W.2d 770, 772 (quoting Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 10, 807 N.W.2d 612, 615

- 16 ). To constitute reversible error, an instruction must be shown to be both erroneous and prejudicial, such that “in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party.” State v. Cottier , 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125 (citation omitted ) . Accordingly, “ j ury instructions are to be considered as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient. This is a question of law reviewed de novo.” State v. Waloke , 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113 (citation omitted). [¶ 14. ] Whistler asserts that Instruction 13 misquotes and significantly deviates from the legal standard in Schroeder , and therefore constitutes reversible

error . See 2004 S.D. 21, 674 N.W.2d 827

. Instruc tion 13 stated , “Any person who knowingly possesses a controlled drug or substance is guilty of a crime. Pos s ession# 2658 8

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- occurs if a person knowingly possesses an altered state of a drug or substance absorbed into the human body.” This Court in Schroeder stat ed that “possession may now occur if a person knowingly possesses ‘an altered state of a drug or substance absorbed into the human body. ’ ” Id. ¶ 14 (citing SDCL 22

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- 1(1); SDCL
22

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- 5). Whistler argues that Jury Instruction 13 improperly changed the
pe rmissive language of “possession may now occur” found in Schroeder to an implied mandatory directive to the jury

. See id

. [¶ 15. ] Whistler’s argument on this point misconstrues the context of th e quoted language in Schroeder

. When we used the ph rase “may now occur,” we were
not describing whether a jury was permitted or mandated to reach a certain verdict , as Whistler asserts

. Instead, we were explaining t hat an amendment to the definition of “ controlled drug or substance ” created two potential ways in which possession occurred. See id. ; 2001 S.D. Sess. Laws ch. 116 , § 1 (adding altered state of enumerated drugs or substances absorbed into body to definition of “ [ c ] ontrolled drug or substance”). The word “may” expressed possibility of criminal activity by the defendant , not permissiveness of action by the jury

. As in , it is possible for possession to occur one of two ways

— possession of the substance itself or possession through absorption of an altered state of the drug in the body. A plain re ading of SDCL 22

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- 1(1) and SDCL 22

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- 5 (2012) , as they were written at the time of# 2658 8

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- Whistler’s conviction 3 reveals that Jury Instruction 13 correctly state d the elements of possession of a controlled substance

. 4 [¶ 16. ] Whistler also assert s that Instruction 17 misstate d the law and created reversible error by removing the State’s burden of proving the mens rea element of “knowing” possession. Instruction 17 stated: “ In a charge of knowing possession of a controlled substance, a positive ur inalysis that reveals the presence of controlled substances in a defendant’s urine may be sufficient in and of itself to support a conviction. ” Whistler a rgues that the phrase “in and of itself” replaces the State’s burden of proving knowing possession wi th simply proving presence of a metabolite in Whistler’s body. In response, the State contends that the court’s instructions taken as a whole accurately state the law. We agree. [¶ 17. ] First, we note that Instruction 17 does not facially misst ate the law. Cf. State v. Evans , 12 S.D. 473, 81 N.W. 893 (1900) (remanding where instruct ion stated wrong burden of proof)

. W e have never held that a positive urinalysis, as a

3

. SDCL 22

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- 5 (2012) read: No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner ’ s professional practice or except as otherwise authorized by chapter 34

– 20B. A violation of this section is a Class 4 felony. SDCL 22

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- 1(1) defines controlled drug or substance to include “an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body[.]”
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. It would be incorrect to state that “knowingly possessing an altered state of a drug or substance absorbed into the body may be a crime

. ” That act is a crime

— as clearly defined by the L egislature . SDCL 22

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- 1(1); SDCL 22

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- 5 (2012).# 2658 8

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- matter of law, mandates a conviction for knowing possession . However, Jury I nstruction 17 did not say that a positive urinalysis mandates a conviction for knowing possession of a controlled substance , as a matter of law. Instead, the instruction set forth the law with respect to the sufficiency of evidence necessary to support a conviction for knowing possession of a controlled substance. In State v.
Mattson , 5 we stated that “in the context of a charge of knowing possession of a controlled substance, a positive urinalysis that reveals the presence of a controlled substance in a d efendant [ ’ ] s urine is sufficient in and of itself to support a conviction due to the language of SDCL 22

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- 1(1).” 2005 S.D. 71, ¶ 54, 698 N.W.2d 538, 554

. See id. ¶ 57, 698 N.W.2d at 555 (also holding that “refusal to provide a urine sample was sufficie nt to support an inference of knowing possession through ingestion”)

. Instruction 17 used nearly identical language

— that a positive urinalysis “ may be sufficient in and of itself to support a conviction ” for possession

— to inform the jury of this legal con cept

. See id. ¶ 54, 698 N.W.2d at 554. Accordingly, we cannot conclude that the instruction misstated the law. [¶ 18. ] Unlike other cases where this Court has found reversible error , this is
not a case where the jury instructions as a whole neve r included the necessary mens

rea element. Cf. State v. Jones , 2011 S.D. 60, ¶ 15, 804 N.W.2d 409, 414 (reversing and remanding conviction for failure to include mens rea element in jury instructions). Nor does Instruction 17 contradict the other instruc tions given as to the burden of the State or the required elements of the crime. Cf. Evans , 12 S.D.

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. The trial court relied on S chroeder as supporting the pattern instruction, but the language of the instruction more closely reflects that in Mattson

.# 2658 8

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- 473, 81 N.W. 893. 6 Instruction 17 addressed but one aspect of the law, i.e., that the jury was permitted to find Whistler guilty even if the State could n ot produce evidence of actual drugs seized

. Viewed in isolation, this lone rule of law presented in Instruction 17 gives an incomplete statement of the law under which to convict a defendant

. Yet, our precedent clearly indicates that each individual inst ruction need not apprise the jury of the whole of the law

. Rather, we examine the instructions as a whole to determine whether they accurately reflect the law

. See Waloke , 2013 S.D. 55, ¶ 28, 835 N.W.2d at 113 ; Cottier , 2008 S.D. 79, ¶ 7, 755 N.W.2d at 1 25 ; State v. Eagle Star , 1996 S.D. 143, ¶ 13, 558 N.W.2d 70, 73 ; State v. Olson , 408 N.W.2d 748, 753 (S.D. 1987)

. [¶ 19. ] T he jury in this case was instructed that they must consider the
instructions as a whole

. 7 As a whole, the jury instructio ns thoroughly in formed the jury of t he mens rea requirement and that the State b ore the burden of proving every element of the crime. Jury Instruction 2 instructed the jury that “[t]he state has the burden of proving every element of the offense charged b eyond a reasonable

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. In Evans , this Court reversed and remanded a conviction for grand larceny, because the jury was given two plainly contradicting instructions. The first stated that the defendant was “presumed to be innocent of the charge of grand larceny until his guilt is established by the state to your satisfaction, by a preponderance of the evidence.” 12 S.D. at 473, 81 N.W. at 893

- 94. The j ury was also instructed that they “must be satisfied of the guilt of the accused beyond a reasonable doubt [

. ] ” Id. at 473, 81 N.W. at 894. 7

. Instruction 4 stated in part, “You must accept and apply the law as stated in these instruction s which you must consider as a whole. You should not disregard any instruction, or give special attention to any one instruction, or question the validity of any rule of law.”# 2658 8

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- doubt.” Jury Instruction 15 set forth those elements : The elements of the crime of possession of a controlled drug or substance, namely cocaine, each of which the state must prove beyond a reasonable doubt, are that, at the time and place alleged:
1. The defendant knowingly possessed the controlled drug or substance cocaine.
2. The drug or substance was not obtained directly pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional pr actice. Jury Instruction 16 reiterated the mens rea element, stating that the “defendant must be shown to have knowingly been in possession of cocaine.” (emphasis added). Jury Instruction 13 also instructed the jury that possession required the person to “knowingly possess[ ] an altered state of a drug or substance absorbed into the human body.” Taken together, these instructions sufficiently inform ed the jury that the State was required to prove each element of the crime , including the mens rea , beyo nd a reasonable doubt. Because the ju ry was sufficiently instructed, we conclude the challenged jury instructions did not create reversible error. C onclusion [¶ 20. ] For the above stated reasons, we affirm the trial court’s decision on all issue s. [¶ 21. ] WILBUR, Justice, concurs. [¶ 22. ] ZINTER, Justice, concurs specially. [¶ 23. ] KONENKAMP and SEVERSON, Justices, dissent.# 2658 8

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- ZINTER, Justice (concurring specially). [¶ 24. ] I join the opinion of the Court. I wri te only to address the dissent’s contention that Instructions 13 and 17 were irreconcilable on the requirement of proving knowing possession. [¶ 25. ] As the Court points out, Instruction 13 (as well as Instructions 2, 15, and 16) required the Sta te to prove that Whistler knowingly possessed the controlled drug or substance. The dissent, however, contends that Instruction 17 contradicted Instruction 13 by “ eliminat[ing] the State’s burden of proving that the possession was knowing.” See infra Dis sent ¶ 29. The dissent describes Instruction 17 as eliminating the knowledge requirement because the instruction indicates

“‘ that [ a positive urinalysis ] may be sufficient in and of itself’ to prove . . . knowing [] ingest[ion of] the . . . substance[].” See infra Dissent ¶ 29. The dissent mischaracterizes Instruction 17. [¶ 26. ] Contrary to the dissent’s characterization, Instruction 17 did not indicate that a positive urinalysis proved the “knowing possession” element of the offense. Instruc tion 17 provided that “[i]n a charge of knowing possession of a controlled substance, a positive urinalysis that reveals the presence of controlled substances in a defendant’s urine may be sufficient in and of itself to support a conviction .” (Emphasis ad ded.) The permissive words of the instruction

— “may . . . support a conviction”

— indicated that the presence of controlled substances may, but did not necessarily, support a conviction. [¶ 27. ] Instruction 17 did not mention, and therefore did not link, a positive urinalysis with any element of the offense. Therefore, it did not give “the jury the# 2658 8

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- option of disregarding an essential element of the offense.” See infra Dissent ¶ 31. Instruction 17 was silent on proof of the elements of the offense . As the Court points out, Instructions 2, 13, 15, and 16 identified and specifically required the jury to find proof of the elements of the offense, including knowing possession, beyond a reasonable doubt. Permissive Instruction 17 did not contradict th ese four mandatory instructions. [¶ 28. ] When correctly characterized and considered together, the instructions were complementary rather than irreconcilable. I therefore join the opinion of the Court.

KONENKAMP, Justice (dissenting). [¶ 29. ] Diligent jurors following the trial court’s instructions in this case could reasonably conclude that, based solely on a positive urinalysis, the law allows a conviction for knowing possession of a controlled substance, even if the jurors hold a reasonable doubt whether the defendant knowingly ingested that substance. The court told the jury in Instruction 17: “In a charge of knowing possession of a controlled substance, a positive urinalysis that reveals the presence of controlled substances in a defendant’s urine may be sufficient in and of itself to support a conviction.” (Emphasis added.) Imagine applying this rule in any other context: a positive urinalysis proves that victims of date rape drugs knew they were taking incapacitating drugs an d that diners stricken with food poisoning knew they were eating contaminated food. If the substances were found in their bodies, then, to parrot the court’s instruction, “that may be sufficient in and of itself” to prove they# 2658 8

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- knowingly ingested the harmf ul substances. This instruction eliminated the State’s burden of proving that the possession was knowing. P ossession of a controlled substance thus became a strict liability offense. [¶ 30. ] Two instructions here were irreconcilable. Instructio n 13 informed the jury that “Possession occurs if a person knowingly possesses an altered state of a drug or substance absorbed into the human body.” (Emphasis added.) Instruction 17 then contradicted Instruction 13, telling the jury that the presence of a controlled substance in the urine “may be sufficient in and of itself to support a conviction” for “the charge of knowing possession.” A positive urinalysis can indeed prove the presence of a substance in the body, but it cannot “in and of itself” prov e knowing possession. And simply because this language was extracted from our opinion in Mattson , does not mean it was proper to use it as a jury instruction. 2005 S.D. 71, ¶ 54, 698 N.W.2d at 554. [¶ 31. ] Jurors are, of course, required to cons ider the instructions as a whole, and error cannot be predicated upon a single instruction that might be objectionable when considered in isolation. Yet many courts, including ours, have long held that when instructions as a whole conflict, such constitut es prejudicial error. State v. Moschell , 2004 S.D. 35, ¶ 54, 677 N.W.2d 551, 567 (citation omitted); State. v. Evans , 12 S.D. 473, 81 N.W. 893, 894 (1900)

. Instruction 17 directly linked Whistler’s positive urinalysis to a conviction for knowing possessi on. It gave the jury the option of disregarding an essential element of the offense. The instruction began with, “In a charge of knowing possession . . . ,” and then told the jury that it may convict Whistler of that charge

— knowing possession

— based s olely on the# 2658 8

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- positive urinalysis, not because the jury believed that the State had met its burden of proof. The i nstruction was “ incorrect, misleading, conflicting, [and] confusing,” and our Court errs in not reversing and remanding for a new trial. See State v. Packed , 2007 S.D. 75, ¶ 17, 736 N.W.2d 851, 856 (citations omitted). [¶ 32. ] SEVERSON, Justice, joins this dissent.