#29070-a-SRJ

2020 S.D. 67

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOSHUA DAVID VORTHERMS, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBIN J. HOUWMAN

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

BRIGID C. HOFFMAN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellee.

NICHOLE A. CARPER of

Burd & Carper Law Office

Sioux Falls, South Dakota Attorneys for defendant and 

appellant.

* * * *

ARGUED

OCTOBER 7, 2020

OPINION FILED 12/02/20
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JENSEN, Justice

[¶1.] A jury convicted Joshua Vortherms of two counts of vehicular 

homicide, one count of vehicular battery, and driving while under the influence of 

alcohol. Vortherms appeals contending that the circuit court erred in denying his 

motion to suppress a blood draw obtained without a search warrant. Vortherms 

also requests that this Court review his ineffective assistance of counsel claim on 

direct appeal. We affirm.

Facts and Procedural History

[¶2.] At approximately 2:15 a.m. on Saturday, July 1, 2017, Christopher 

Schoepf and his family were driving west on I-90 towards Sioux Falls after spending 

the evening at the Luverne, Minnesota drive-in theater. Schoepf, an off-duty 

detective with the Sioux Falls Police Department, saw skid marks on the road and a 

cloud of dust in the ditch off the interstate near the Brandon exit. He also observed 

a shirtless man, later identified as Vortherms, standing and waving on the side of 

the road. Schoepf turned his vehicle around to assist. Schoepf’s girlfriend called 

911 to report the accident at 2:18 a.m.

[¶3.] When Schoepf got out of his car, he could not locate the man who had 

been on the side of the road. Using his flashlight, Schoepf observed a white pickup 

and a black Subaru lying on its passenger side in the ditch. Both vehicles were 

heavily damaged. Schoepf heard a girl’s voice crying out for help from the ditch. He 

found the girl trapped in the backseat of the Subaru. Schoepf did not see anyone 

else in the Subaru, but he observed a man who appeared to be deceased lying on the 

ground nearby.
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[¶4.] The girl, S.F., was eleven years old. She had also been travelling home 

from the Luverne drive-in theater with her family and had fallen asleep before the 

crash. S.F. testified that she saw Vortherms exit the white pickup after the 

accident. S.F. cried for help, and Vortherms walked over to her. He told S.F. that 

barbed wire prevented him from getting her out of the Subaru, but he would get 

help. Schoepf arrived minutes after Vortherms left. An ambulance arrived and 

took S.F. to the hospital where she had surgery for a broken leg.

[¶5.] Meanwhile, Vortherms had walked to a hotel located approximately 

1/4 mile from the crash site. The front desk clerk saw that Vortherms was bleeding 

from his head. The clerk asked Vortherms if he was okay. Vortherms replied that 

he “hurt his head,” and there had been a car accident. The clerk asked if anybody 

else was hurt. Vortherms said that there were others in the crash and repeated 

that he had “hurt his head.” The clerk called 911.

[¶6.] State Trooper Patrick Bumann responded to the dispatch call and 

arrived at the hotel at approximately 2:31 a.m. After Bumann arrived, he “was 

informed that there were multiple fatalities . . . [; and] there might have been one 

person that was still missing from the scene.” Bumann observed that Vortherms 

was shirtless, missing a shoe, had blood all over the front of his body, and was 

holding a cloth to a gash on his head. Bumann asked Vortherms for his name and 

contacted dispatch to verify his identity.

[¶7.] Bumann smelled alcohol on Vortherms’s breath and began questioning 

him about the accident. Vortherms stated that he had been “cruising with a buddy” 

in the white pickup truck. Vortherms admitted that he had a few drinks, but he 
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claimed that he had not been driving. Vortherms did not answer any of Bumann’s 

other questions about his “buddy” and claimed that he was unable to remember 

exactly where he was sitting in the pickup. Vortherms continued to lose blood and 

passed in and out of consciousness while Bumann questioned him. Bumann did not 

conduct any field sobriety tests on Vortherms because of his injuries.

[¶8.] Three other officers, including another state trooper and a Minnehaha 

County Sheriff’s Deputy, arrived at the hotel within several minutes of Bumann. 

The officers assisted Bumann by rendering first aid to Vortherms. At 2:40 a.m., an 

ambulance arrived at the hotel to transport Vortherms to the hospital. Bumann 

continued to question Vortherms while the ambulance crew began treating his 

injuries. The other officers helped move Vortherms onto a stretcher and into the 

ambulance.

[¶9.] Bumann unsuccessfully attempted to take a preliminary breath test 

(PBT) of Vortherms at the hotel. Another officer eventually managed to take a PBT 

just before Vortherms was placed in the ambulance that produced a breath alcohol 

content of .097. The ambulance left the hotel to transport Vortherms to a Sioux 

Falls hospital at 2:52 a.m. Bumann followed the ambulance to the hospital, which 

was approximately five miles from the hotel. Bumann testified that the other 

officers went to the crash site to look for other individuals who may have been hurt 

or involved in the crash because of Vortherms’s statement that he was traveling 

with his “buddy.”

[¶10.] The ambulance arrived at the hospital at 3:06 a.m. When Bumann 

arrived, he overheard healthcare personnel discussing that Vortherms had “lost a 
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lot of blood” and needed to be admitted to surgery. Bumann had five years of 

experience as a state trooper and had requested around thirty telephonic warrants 

during his career. Bumann also knew that he needed to draw Vortherms’s blood to 

preserve his blood alcohol content (BAC) for the investigation. Bumann requested a 

blood draw, believing he did not have time to obtain a search warrant before 

Vortherms went into surgery. The draw was taken at 3:17 a.m. and produced a 

BAC of .159.1

[¶11.] Back at the scene of the accident, officers identified the man on the 

ground as S.F.’s father, Shannon Fischer. Fischer’s girlfriend, Anna Mason, had 

also been ejected from the Subaru. Later law enforcement determined that Mason 

was likely the Subaru’s driver. First responders pronounced Fischer and Mason 

dead on scene. They both suffered fatal injuries from multiple blunt force trauma.

[¶12.] On November 16, 2017, a Minnehaha County Grand Jury indicted 

Vortherms on two counts of vehicular homicide, vehicular battery, and two 

alternative counts of driving while intoxicated.2 Vortherms filed a motion to 

 

1. After the warrantless blood draw, Bumann went to his patrol car to obtain a 

telephonic warrant for two additional blood samples to be taken an hour 

apart. The warrant was approved at 4:02 a.m. Vortherms was in surgery 

when Bumann reentered the hospital to deliver the warrant. After surgery, 

hospital staff drew Vortherms’s blood at 5:44 a.m. and 6:44 a.m. pursuant to 

the warrant. The blood sample taken at 6:44 a.m. produced a BAC of .093. 

The State’s expert used this result and the BAC from the warrantless blood 

draw to opine that Vortherms’s BAC was approximately .18 at the time of the 

accident.

2. The State charged alternative counts for driving under the influence under 

subsections (1) and (2) of SDCL 32-23-1: (1) when “[t]here is .08 percent or 

more by weight of alcohol in [a] person’s blood,” and (2) when a person is 

“[u]nder the influence of an alcoholic beverage . . . .” The State also charged 

(continued . . .)
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suppress the BAC result from the warrantless blood draw. He claimed the 

warrantless draw violated his Fourth Amendment rights because there were not 

exigent circumstances. Vortherms advanced that there were multiple officers at the 

scene of the accident and there was adequate time to obtain a telephonic warrant, 

which could have been obtained in as little as fifteen minutes.

[¶13.] Prior to trial, the circuit court held an evidentiary hearing on the 

suppression motion. The State offered Bumann’s testimony and argued that there 

were exigent circumstances. Bumann testified that he and the other officers had 

not requested a warrant at the hotel because they were continuing to investigate 

the circumstances of the accident, including whether another person had been 

driving or was injured in the crash.

[¶14.] Bumann further testified that he did not believe he had time to obtain 

a warrant once he arrived at the hospital because he immediately learned that 

Vortherms would be admitted into surgery. Bumann knew that Vortherms’s BAC 

would dissipate over time, and it could be altered by blood transfusions or 

medications that Vortherms might receive during surgery. He also believed that 

the hospital would not draw Vortherms’s blood during surgery or delay the surgery 

until he got a warrant. Bumann acknowledged that it was possible to obtain a 

telephonic warrant in fifteen minutes, but he also knew from experience that it

could take as long as an hour. He explained that the warrant process required him 

to prepare a narrative before phoning a judge to obtain approval. He also explained 

________________________

(. . . continued)

Vortherms with reckless driving and speeding on the interstate, which the 

State dismissed before trial.
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that he might have to call multiple judges before he reached a judge who answered 

the phone and could review the search warrant, especially in the early morning 

hours or on the weekend. Then, after the warrant was served, it could take an 

additional fifteen minutes to an hour for the hospital to find a phlebotomist to draw 

blood. The court held that exigent circumstances existed and denied the 

suppression motion.

[¶15.] A trial was held from April 1-4, 2019, in Minnehaha County. The 

State presented evidence that Vortherms was driving under the influence of alcohol 

and caused the accident when he lost control of his pickup and drove into the 

Subaru’s lane at approximately 95 miles per hour. The jury found Vortherms guilty 

on two counts of vehicular manslaughter, one count of vehicular battery, and one 

count of driving under the influence of alcohol.

[¶16.] The court imposed a thirty-year prison sentence, with five years 

suspended, on the two vehicular manslaughter convictions; and suspended a tenyear prison sentence on the conviction for vehicular battery. The court imposed a 

suspended county jail sentence on the conviction for driving under the influence of 

alcohol with at least a .08 BAC.

[¶17.] Vortherms appeals the circuit court’s denial of his motion to suppress 

the warrantless blood draw and requests that this Court review his ineffective 

assistance of counsel claim on direct appeal.3

 

3. Vortherms is represented by different counsel on appeal.
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Analysis and Decision

1. Whether the circuit court erred when it denied 

Vortherms’s motion to suppress the warrantless blood 

draw.

[¶18.] “We review the court’s grant or denial of a motion to suppress 

involving an alleged violation of a constitutionally protected right under the de novo 

standard of review.” State v. Fischer, 2016 S.D. 12, ¶ 10, 875 N.W.2d 40, 44. We 

review “[t]he court’s findings of fact . . . under the clearly erroneous standard.” Id. 

“Once the facts have been determined, however, the application of a legal standard 

to those facts is a question of law reviewed de novo.” State v. Wright, 2010 S.D. 91, 

¶ 8, 791 N.W.2d 791, 794.

[¶19.] “The Fourth Amendment’s prohibition against unreasonable searches 

and seizures requires generally the issuance of a warrant by a neutral judicial 

officer based on probable cause . . . . Warrantless searches are per se unreasonable, 

apart from a few, well-delineated exceptions.” Fischer, 2016 S.D. 12, ¶ 13, 875 

N.W.2d at 45. In Missouri v. McNeely, the Supreme Court reiterated that the 

Fourth Amendment requires law enforcement to obtain a warrant for a blood draw. 

569 U.S. 141, 152, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013) (“[W]here police 

officers can reasonably obtain a warrant before a blood sample can be drawn 

without significantly undermining the efficacy of the search, the Fourth 

Amendment mandates that they do so.”).

[¶20.] Exigent circumstances “is one of the well-delineated exceptions to the 

warrant requirement.” Fischer, 2016 S.D. 12, ¶ 13, 875 N.W.2d at 45. It “‘applies 

when the exigencies of the situation make the needs of law enforcement so 
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compelling that a warrantless search is objectively reasonable under the Fourth 

Amendment.’” Id. (quoting McNeely, 569 U.S. at 148-49, 133 S. Ct. at 1558). The 

State has the burden to prove this exception. Id. A court must “examine the 

totality of the circumstances to determine whether law enforcement faced exigent 

circumstances that justified the warrantless blood draw.” Id. ¶ 17 (citing 

McNeely, 569 U.S. at 149, 133 S. Ct. at 1559).

[¶21.] Once Bumann arrived at the hospital, the court found that 

Vortherms’s imminent surgery threatened to destroy BAC evidence. The court then 

analyzed whether Bumann’s decision to obtain a warrantless blood draw at that 

point was reasonable under the circumstances. The court noted that officers were 

only at the hotel for approximately twenty minutes before an ambulance took 

Vortherms to the hospital. It reviewed Bumann’s actions during this period: his 

assessment of Vortherms upon arriving at the hotel, his attention to Vortherms’s 

injuries, and his interrogation of Vortherms in a developing DUI investigation. The 

court also considered the urgency of the situation based on Vortherms’s injuries, his 

passage in and out of consciousness, and his statement that he was travelling with 

a “buddy” who appeared to be missing. The court rejected Vortherms’s argument 

that the other responding officers could have obtained a warrant and delivered it to 

Bumann, noting that:

Interstate 90 . . . is an extremely well-traveled interstate 

system[,] . . . [and] importantly, the other officers . . .were 

directed to search for a potential missing individual who could 

have either been dead or in need of immediate medical 

treatment. This information is based on defendant’s own 

statements to law enforcement that he was traveling with 

someone.
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Additionally, the court found that even if other officers could have obtained a 

warrant, “there certainly could have been [a] great distance between those troopers 

and [the hospital],” which would make it difficult for any officer to bring a warrant 

to Bumann.

[¶22.] Vortherms argues that the State failed to prove that exigent 

circumstances existed because there were multiple officers at the scene who could 

have begun the warrant application process soon after the accident was reported at 

2:18 a.m. He further contends that it was possible for law enforcement in the Sioux 

Falls area to obtain telephonic warrants remotely in fifteen minutes. He reasons 

that these facts, along with Bumann’s belief that Vortherms had been drinking 

shortly after Bumann arrived at 2:31 a.m., show that law enforcement had enough 

time to obtain a warrant before the warrantless blood draw.

[¶23.] We have held that imminent medical care that threatens to destroy 

BAC evidence through blood transfusions, intravenous fluids, or natural dissipation 

over time may create exigent circumstances. Fischer, 2016 S.D. 12, ¶ 20, 875 

N.W.2d at 47-48. Therefore, Vortherms’s argument primarily hinges on whether 

law enforcement’s failure to obtain a warrant in the thirty-five minutes between 

Bumann’s arrival at the hotel and his arrival at the hospital was unreasonable.4 

 

4. Vortherms’s appeal relies heavily on dash cam footage of Bumann’s arrival at 

the hotel to support his claim that another officer at the scene could have 

obtained a warrant. This footage was admitted into evidence at trial, but it 

was not presented at the suppression hearing; and the circuit court was never 

asked to reexamine its ruling based on the dash cam footage. We decline to 

consider this footage in our review of the suppression motion because 

Vortherms did not present this evidence to the circuit court. State v. Bowker, 

2008 S.D. 61, ¶ 35 n.4, 754 N.W.2d 56, 67 n.4 (“Since [the defendant] failed to 

(continued . . .)
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We do not review the reasonableness of an officer’s conduct with the benefit of 

hindsight. Rather, we “ask whether police officers, under the facts as they knew 

them at the time, would reasonably have believed that delay in procuring a search 

warrant would gravely endanger life[ or] risk destruction of evidence.” State v. 

Hess, 2004 S.D. 60, ¶ 25, 680 N.W.2d 314, 325 (emphasis added).

[¶24.] In Fischer, the defendant struck and killed two people with his vehicle 

near Pickstown, South Dakota. 2016 S.D. 12, ¶ 2, 875 N.W.2d at 42. The accident 

created an extensive debris field, which included the body parts of the victims. Id. ¶ 

17. The Sheriff arrived at the scene approximately twenty minutes after deputies 

had arrived and after the defendant was taken away by ambulance. Id. ¶ 4. The 

Sheriff quickly learned that the defendant had smelled of alcohol and would be 

transported by helicopter to Sioux Falls for medical care, and he ordered a deputy to 

obtain a blood sample from the defendant before the defendant was transferred. Id.

¶ 5. The Sheriff did not tell the deputy to obtain a search warrant because he did 

not believe there was enough time. Id.

[¶25.] In Fischer, we determined that exigent circumstances existed because

it was reasonable for the responding officers to continue their investigation of a 

fatal accident rather than stop the investigation to obtain a warrant. All available 

officers were still “busy directing the investigation, which included: helping those 

injured; preserving evidence from the rain by covering it; [and] preserving evidence 

________________________

(. . . continued)

introduce the [footage] at the hearing on the motion to suppress . . . or have it 

incorporated into those proceedings, any consideration of the content of the 

[footage] is waived on appeal.”). Regardless, the footage does not refute 

Bumann’s pretrial hearing testimony.
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by photographing it . . .” when they learned that BAC evidence could be lost or 

destroyed by the defendant’s transfer to Sioux Falls. Id. ¶ 9. We determined that 

law enforcement’s failure to obtain a warrant in the first twenty-plus minutes on 

the scene was not unreasonable because the officers were busy investigating the 

accident and preserving evidence. Id. ¶ 20. Fischer also concluded that the 

warrantless blood draw was reasonable because the BAC evidence could be lost or 

destroyed by the time officers obtained a warrant. Id.

[¶26.] Similarly, only twenty-one minutes passed from the time that Bumann 

arrived at the hotel until Vortherms was transported to the hospital. During this 

time, Bumann verified Vortherms’s identity, took photographs of Vortherms’s 

injuries, and questioned Vortherms to determine his involvement in the accident 

and if others needed medical care. Bumann smelled alcohol on Vortherms’s breath 

shortly after he arrived. However, because of Vortherms’s condition, Bumann was 

unable to obtain a PBT until just before Vortherms was transported to the hospital. 

Additionally, Vortherms’s own statements created pressing questions of whether 

Vortherms was driving or if another person was involved in the accident.

[¶27.] Further, it was not unreasonable for the other officers at the scene to 

assist Bumann and look for injured persons rather than prepare a warrant “under 

the facts as they knew them at the time[.]” Hess, 2004 S.D. 60, ¶ 25, 680 N.W.2d at 

325. The circuit court noted that “Trooper Bumann’s testimony clearly indicates 

that [it was] not possible” for another officer to obtain a warrant. The other officers 

were busy investigating the accident scene because they “didn’t know if [other 

potential victims] were alive or not.” Bumann also testified that he believed a 
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search was actively ongoing because he was informed that the Brandon Fire 

Department requested a helicopter to search for missing persons. The circuit court 

found that the investigation was even more urgent than in Fischer. We agree. 

Unlike Fischer, where multiple eyewitnesses immediately identified the driver and 

both victims, the officers here had to confirm─in the face of inaccurate information 

from Vortherms─who was involved in the accident and whether there were other 

survivors in need of medical treatment.

[¶28.] Moreover, delays “‘in the regular course of law enforcement . . . from 

the warrant application process’” may be considered when determining whether 

exigent circumstances exist. Fischer, 2016 S.D. 12, ¶ 20, 875 N.W.2d at 47 (quoting 

McNeely, 569 U.S. at 156, 133 S. Ct. at 1563). “The metabolization of alcohol in the 

bloodstream and the ensuing loss of evidence are among the factors that must be 

considered in deciding whether a warrant is required.” Id. ¶ 16 (quoting McNeely, 

569 U.S. at 165, 133 S. Ct. at 1568). Further, “The relevant factors in determining 

whether a warrantless search is reasonable[] includ[e] the practical problems of 

obtaining a warrant within a timeframe that still preserves the opportunity to 

obtain reliable evidence[.]” McNeely, 569 U.S. at 164, 133 S. Ct. at 1568. Exigent 

circumstances may exist despite technological advances that allow warrants to be 

obtained remotely. McNeely, 569 U.S. at 155, 133 S. Ct. at 1562 (“[I]mprovements 

in communications technology do not guarantee that a magistrate judge will be 

available when an officer needs a warrant after making a late-night arrest.”).

[¶29.] Bumann testified that he knew it may take more than fifteen minutes 

to obtain a telephonic warrant because the accident occurred on an early weekend 
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morning. Bumann also testified about the logistical difficulty of finding another 

officer to help obtain a search warrant during an ongoing investigation. He 

explained that he would have to prepare a probable cause narrative for the warrant 

or convey the probable cause information to another officer. Then the other officer 

would need to drive to the hospital to serve the warrant. Bumann testified that it 

was unclear how long surgery would delay a blood draw, or if surgery would 

compromise the reliability of the BAC result. The circuit court found Bumann’s 

testimony credible and that these facts created exigent circumstances. Here, we 

conclude that the urgency of medical treatment and its uncertain effects on BAC 

evidence fit well within the exigent circumstances recognized in Fischer.

2. Whether Vortherms’s ineffective assistance of counsel 

claim is cognizable on direct appeal.

[¶30.] “Ineffective-assistance-of-counsel claims are generally not considered 

on direct appeal. Rather, such claims are best made by filing a petition for a writ of 

habeas corpus which, if granted, will result in an evidentiary hearing.” State v. 

Hauge, 2019 S.D. 45, ¶ 18, 932 N.W.2d 165, 171. This is because the record on 

direct appeal typically does not afford a basis to review the performance of trial 

counsel. See id. Therefore, we have stated that “[a]bsent exceptional 

circumstances, we will not address an ineffective assistance claim on direct appeal. 

We depart from this principle only when trial counsel was so ineffective and 

counsel’s representation so casual as to represent a manifest usurpation of the 

defendant’s constitutional rights.” State v. Golliher-Weyer, 2016 S.D. 10, ¶ 8, 875 

N.W.2d 28, 31.
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[¶31.] Vortherms argues trial counsel made three errors that cumulatively 

created prejudicial error and should be reviewed on direct appeal: (1) failure to 

challenge the admissibility of the opinion of the State’s accident reconstructionist 

prior to trial, (2) failure to challenge the admissibility of the “black box data” from 

Vortherms’s vehicle, and (3) failure to call a witness who allegedly saw a Subaru 

swerve on I-90 around the time of the accident.

[¶32.] Trial counsel for Vortherms presented an expert witness who 

responded to the opinion of the State’s accident reconstructionist. Trial counsel also 

extensively cross-examined the State’s accident reconstructionist and the State’s 

witness on the “black box data.” We can only speculate on this record whether trial 

counsel’s approach to challenge the State’s evidence in this fashion, rather than 

challenging its admissibility, was deficient. State v. Phillips, 2018 S.D. 2, ¶ 22, 906 

N.W.2d 411, 417 (discussing how trial counsel’s tactical decisions are not suited to 

review on direct appeal “because . . . trial counsel is not afforded the opportunity to 

explain and defend his or her actions”). Finally, a State Trooper testified that he 

interviewed the witness who had allegedly observed a Subaru weaving on I-90, but 

he determined that the witness could not identify the particular vehicle, its driver, 

and did not observe the accident. We cannot determine from this record whether 

this potential witness could have provided helpful information to Vortherms. See

State v. Beck, 2010 S.D. 52, ¶ 24, 785 N.W.2d 288, 296 (rejecting an ineffective 

assistance of counsel claim when the defendant failed to establish prejudice). For 

these reasons, we decline to review Vortherms’s ineffective assistance of counsel 

claim on direct appeal.
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[¶33.] We affirm.

[¶34.] GILBERTSON, Chief Justice, and, KERN, SALTER, and DEVANEY, 

Justices, concur.