State v. Diaz

#27432-a-LSW
2016 S.D. 78

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

MARICELA DIAZ, Defendant and Appellant.

****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
HANSON COUNTY, SOUTH DAKOTA

****
THE HONORABLE TIMOTHY W. BJORKMAN
Judge

****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

CHRIS A. NIPE
Mitchell, South Dakota

and

DOUGLAS M. DAILEY
Mitchell, South Dakota
Attorneys for defendant
and appellant.

****
ARGUED ON
OCTOBER 3, 2016
OPINION FILED 11/22/16
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WILBUR, Justice

[¶1.] Defendant appeals her conviction of the 2009 murder and kidnapping

of Jasmine Guevara. Defendant, a juvenile at the time of the crime, challenges the

transfer of her case to adult court, this Court’s previous decision reversing the

suppression of statements she made to law enforcement, the circuit court’s

instructions on imminent fear, and her 80-year sentence with no time suspended.

We affirm.

Background

[¶2.] On November 10, 2009, law enforcement officers and firefighters

responded to a vehicle fire in a wooded area of Hanson County near Mitchell, South

Dakota. After extinguishing the fire, they discovered a badly burned body in the

vehicle’s trunk, later identified as 16-year-old Jasmine Guevara. The autopsy

revealed that Guevara had been burned alive.

[¶3.] After tracking the ownership of the vehicle to Guevara, law

enforcement reached out to the public for any information on Guevara’s

whereabouts on November 10, 2009. A citizen witness relayed that she had seen

Guevara at Walmart with two Hispanic individuals. The tip led officers to

Alexander Salgado and Maricela Diaz. Salgado and Diaz had arrived in Mitchell

from Indiana the month before, in October 2009. Diaz was 15 years old; Salgado

was 21 years old. Diaz and Salgado, who were in a relationship with each other,

were staying in Mitchell with an acquaintance, Steffany Molina.

[¶4.] On November 12, 2009, Investigators Joel Reinesch and Dean

Knippling located Diaz and Salgado at Molina’s house. The two agreed to go with

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the officers to the Mitchell Police Department. At the police department,

Investigator Toby Russell attempted to obtain identifying information from Diaz so

he could contact Diaz’s parents. Diaz gave Investigator Russell false information

multiple times. Investigator Russell eventually contacted Diaz’s mother, Irma

Gutierez-Placencia. Officer Hector Soto of the Sioux Falls Police Department spoke

with Gutierez-Placencia in Spanish and obtained Gutierez-Placencia’s consent to

talk to Diaz.

[¶5.] The officers returned to the interview room and informed Diaz that her

mother had given them permission to question her. Investigator Russell told Diaz

her Miranda rights in English, but Diaz indicated she did not understand what was

being said. Diaz spoke limited English. She had emigrated with her mother from

Mexico to Indiana when she was 11 years old. Officer Soto then told Diaz her rights

in Spanish. Diaz agreed to speak to the officers. For a more extensive description

of Diaz’s waiver of her Miranda rights, see State v. Diaz (Diaz I), 2014 S.D. 27, 847

N.W.2d 144. In a separate interview room, Salgado also waived his Miranda rights

and agreed to speak to the officers.

[¶6.] Diaz informed the officers that shortly after arriving in Mitchell, she

and Salgado met Molina’s neighbor, Guevara. Neither Diaz nor Salgado was

employed. Diaz explained that Guevara helped Diaz and Salgado with money, food,

clothing, and transportation, and gave them tips for finding jobs. Guevara would

also hang out with Diaz and Salgado. But Diaz suspected Salgado and Guevara had

romantic interests in each other. Diaz told the officers that she and Salgado made a

plan to kill Guevara and burn all the evidence. She said the plan originated with

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Salgado and she cooperated because she was mad at and afraid of Salgado. Diaz

also claimed that Salgado agreed to kill Guevara to prove his love to Diaz.

[¶7.] Diaz told the officers that on the day of Guevara’s murder, Diaz asked

Guevara to give Diaz and Salgado a ride to Walmart to purchase lighter fluid. Diaz

and Salgado told Guevara that the lighter fluid was for a cookout and invited

Guevara to attend with them. Before Guevara picked them up at Molina’s house,

Diaz and/or Salgado hid two kitchen knives within their clothing. After Guevara

purchased the lighter fluid at Walmart for Diaz and Salgado, Diaz and Salgado told

Guevara to drive to an area referred to as the “haunted house” in rural Hanson

County.

[¶8.] Diaz claimed that it was Salgado’s idea that he would get out of the car

at the haunted house and Diaz was to start the murder. Salgado disagreed that the

murder was his idea. He claimed that Diaz wanted Salgado’s help to kill Guevara

to prove his love for Diaz. Salgado told the officers that after he exited the vehicle,

he returned to the car when he heard Guevara screaming. Diaz claimed that she

attempted to stab Guevara, but was unable to follow through. She said Salgado

entered the car and grabbed Diaz’s knife from her. Diaz also said that her knife

broke and Salgado used his own knife. Salgado, however, said that Diaz stabbed

Guevara. He admitted that he also stabbed Guevara. Diaz claimed that after

Salgado stabbed Guevara in the neck, he picked her up and put her in the trunk of

the vehicle. He doused Guevara with lighter fluid. Salgado claimed that Diaz

helped him get Guevara into the trunk. It is undisputed that Guevara was still

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alive when Salgado and/or Diaz set the vehicle ablaze. Guevara ultimately died of

smoke inhalation.

[¶9.] Diaz told the officers that, after setting the vehicle on fire, Diaz and

Salgado walked approximately eight miles to Molina’s house. Diaz threw the gloves

she was wearing into a ditch while they were walking and she tossed her sweatshirt

on the railroad tracks in Mitchell. Diaz claimed Salgado threw Guevara’s phone in

a river. Once they arrived at Molina’s house, Diaz and Salgado washed themselves

and used bleach on their hands to remove the blood stains. According to Molina,

Diaz and Salgado acted normally that night at home.

[¶10.] Ultimately, law enforcement arrested Salgado and Diaz for the

kidnapping and murder of Guevara. Salgado pleaded guilty to second-degree

murder and agreed to testify against Diaz as part of his plea agreement. On

November 17, 2009, the State charged Diaz in juvenile court with first-degree

murder, first-degree murder—felony murder: arson, and first-degree arson. Diaz

moved to suppress her statements to law enforcement. After a hearing, the juvenile

court denied Diaz’s motion.

[¶11.] The State moved to transfer Diaz’s case to adult court. At the transfer

hearing, Salgado testified against Diaz. He explained that he first met Diaz

through Diaz’s brothers. Salgado was 19 years old; Diaz was 13 years old. Salgado

testified about their relationship. He offered that he did not hit Diaz at first, but

after he learned that she cheated on him, he got angry and hit Diaz. Salgado tried

to end the relationship. He claimed Diaz said she would rather be dead than be

without him and tried to kill herself. Salgado admitted that he was in the bathroom

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with Diaz while she tried to cut her wrists. Salgado helped her cut her wrists and

then left her bleeding in the bathroom. Salgado knew Diaz was pregnant. Others

found Diaz and took her to the hospital. Salgado explained that he went to the

hospital and renewed their relationship. After this incident, and because Diaz was

pregnant, child protection services in Indiana became involved and directed Diaz

and Diaz’s family that Diaz was to stay away from Salgado. Salgado testified that

Diaz defied her mother and child protection services. Diaz would skip school and

sneak out of her house to see Salgado.

[¶12.] In July 2009, Diaz gave birth to Salgado’s baby. Diaz was 14 years old.

After their baby was born, Diaz and Salgado lived together in Salgado’s mother’s

home. Salgado again physically abused Diaz. He testified that Diaz tried to kill

herself and cut her wrists again. According to Salgado, Diaz thought Salgado was

cheating on her and moved back into her mother’s home. She and Salgado

continued to spend time with each other. At some point, Salgado’s mother kicked

him out of her home, and Salgado told Diaz that he was going to leave Indiana for a

job, and he would send her money. According to Salgado, Diaz said she would kill

herself if Salgado left without her. Salgado let Diaz go with him. They planned to

travel to Mitchell, South Dakota by bus.

[¶13.] Salgado testified that Molina picked them up at the bus station in

Mitchell in October 2009. According to Salgado, Diaz became jealous of Salgado

looking at Molina at the bus station and she yelled at him. Diaz also became

jealous of Salgado’s interactions with Guevara. They had met Guevara their first

night in Mitchell when Molina hosted a party. Salgado testified that he and Diaz

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would physically fight because of Diaz’s jealousy. One fight occurred two nights

before Guevara’s murder. Diaz, Salgado, Molina, and Guevara were together at

Guevara’s boyfriend’s house for a party. Diaz had accused Salgado of looking at

Guevara, and Diaz tried to punch him and hit him with her elbows. She then yelled

at Guevara and wanted to fight her. Diaz eventually calmed down and they all left

the party.

[¶14.] The next morning, Diaz suspected Salgado was talking to Guevara

outside a pawn shop. According to Salgado, Diaz threatened to fight and kill

Guevara. Salgado testified that he did not believe Diaz. He explained that the next

day Diaz repeated that she planned to kill Guevara. Salgado testified that he and

Diaz watched “A Thousand and One Ways to Die” on television that evening.

According to Salgado, the show described how to get rid of evidence by burning

someone in the trunk of a car. Salgado testified that Diaz said that she would burn

Guevara in the trunk of a car. Salgado explained that he agreed to help Diaz

because he felt that if he did not Diaz would believe Salgado was sticking up for

Guevara and become more jealous. Salgado then testified in detail regarding the

murder of Guevara.

[¶15.] In opposition to the State’s motion to transfer her case to adult court,

Diaz’s counsel had asked Reclaiming Youth International (RYI) to perform a

developmental audit on Diaz and make a recommendation to the juvenile court

whether Diaz’s best interests would be served in the juvenile or adult system. The

State asked Dr. Travis Hansen to evaluate Diaz and generate a report containing

his psychiatric findings. The State also requested that Dr. Donald Dutton examine

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Diaz and review RYI’s report. Dr. Dutton specializes in domestic violence. These

and other expert witnesses testified about Diaz’s mental state, her youth, the fact

she was a victim of sexual abuse by Salgado, and about the rehabilitative potential

of the State’s juvenile and adult prison systems.

[¶16.] In the juvenile court’s written findings, it noted the discrepancies in

Diaz’s statements to law enforcement, RYI, Dr. Hansen, and Dr. Dutton. Despite

the conflicting evidence, the court found undisputed that Diaz exhibited a

premeditated plan to kill Guevara. The court disagreed that Diaz acted against her

will or that Diaz was under duress. Although the report from RYI maintained that

Salgado had dominion over and control of Diaz and that Diaz experienced “trauma”

because of her relationship with Salgado, the court found more persuasive the

statements Diaz made to Drs. Dutton and Hansen. The court wrote,

Notably, [Diaz] only told Dr. Bean and the RYI team that
Salgado forced her to help with the murder. In her interviews
with Dr. Hansen, Dr. Dutton, and law enforcement, [Diaz] said
that the plan originated with Salgado. She did not state,
however, that he forced her to assist him. Salgado’s
acknowledged responsibility for Jasmine’s murder does not
obviate the fact that [Diaz], at the very least, aided Salgado in
the planning and was an active participant in the murder itself.

The court concluded that Diaz was not under Salgado’s control at the time of the

murder. The court also concluded that the prosecutive merit against Diaz was

substantial. In consideration of Dr. Hansen’s and Dr. Dutton’s testimony, the RYI

developmental audit, Diaz’s statements to law enforcement, and other witness

testimony, the court found that it would be contrary to Diaz’s best interests and the

public to retain jurisdiction in juvenile court.

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[¶17.] In June 2011, the court granted the State’s motion to transfer Diaz to

adult court. On October 14, 2011, Diaz moved the circuit court to vacate the

transfer order because Diaz discovered that one of the State’s experts, Dr. Dutton,

had been accused of sexually assaulting a student. After a hearing, the court

denied Diaz’s motion. In adult court, a Hanson County grand jury indicted Diaz on

six counts: (1) first-degree murder, (2) conspiracy to commit first-degree murder, (3)

first-degree murder—felony murder (arson), (4) first-degree arson, (5) first-degree

murder—felony murder (kidnapping), and (6) second-degree aggravated

kidnapping. Diaz pleaded not guilty to all charges.

[¶18.] Diaz again moved to suppress the statements she made to law

enforcement. The court granted Diaz’s request to reconsider the juvenile court’s

suppression decision and, after a hearing, granted Diaz’s motion to suppress the

statements. The court concluded that Diaz did not knowingly and intelligently

waive her Miranda rights. In November 2012, the State filed a petition for an

intermediate appeal, which this Court granted. In May 2014, this Court in a

divided decision reversed the circuit court’s suppression of Diaz’s statements. Diaz

I, 2014 S.D. 27, 847 N.W.2d 144.

[¶19.] A jury trial began on December 29, 2014, and concluded on January

15, 2015. Over thirty witnesses testified. Nick Rehorst of the Alexandria Fire

Department testified about responding to the fire call, extinguishing the fire, and

locating Guevara’s body in the vehicle’s trunk. Two witnesses testified about

surveillance footage from Walmart capturing Diaz, Salgado, and Guevara at

Walmart on November 10. The jury observed the footage in conjunction with the

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witness testimony. Multiple officers testified and explained their roles in the

investigation. These roles included: identifying the owner of the car; speaking to

Guevara’s mother and boyfriend; speaking to witnesses who observed Diaz, Salgado,

and Guevara at Walmart; searching for evidence from the scene; obtaining evidence

from Diaz’s person; obtaining evidence to identify Guevara’s DNA; performing DNA

testing on the evidence obtained; seizing and securing the vehicle for inspection; etc.

[¶20.] Special Agent James Severson testified that he recovered Guevara’s

cell phone in the river and Diaz’s gloves and hooded sweatshirt on the route Salgado

and Diaz walked from the fire to Mitchell. Kevin Winer, the Chief Criminalist

Supervisor at the Kansas City Police Department Crime Lab, testified about the

bloodstain patterns on two sweatshirts recovered during the investigation. One

sweatshirt belonged to Diaz and the other to Salgado. A blood stain pattern,

according to Winer, is “a grouping of individual bloodstains that either by their

shape, their form, their location, their distribution, suggests they were deposited by

a single event or a series of events overlapping one another.” Winer then described

the different types of bloodstain patterns and the indications gleaned from those

patterns.

[¶21.] Winer testified that the DNA testing indicated that the bloodstains on

the two sweatshirts were from Guevara. In regard to Diaz’s sweatshirt, Winer

testified that the front of the sweatshirt contained five or six spatter bloodstains.

The left sleeve on the front side contained either a spatter stain or a transfer stain.

A transfer stain, according to Winer, is “a bloody object coming in contact with a

surface[.]” A spatter stain is:

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a general term that’s used to describe blood that has traveled
through the air and landed on a surface. . . . It’s not blood that’s
just simply falling down due to the force of gravity. There’s
some other force involved that propels it through the air and
lands on a surface.

Winer also noticed additional transfer stains indicating “some wiping or swiping

action that’s taking place; again, evidence of a bloody object coming in contact with

a surface, or multiple different bloody objects.” The left cuff of the same sleeve, on

the palm side, also contained a transfer stain. Winer testified in regard to certain

stains on the back of Diaz’s sweatshirt and could not opine conclusively if the stains

were transfer or spatter. On the back elbow, however, Winer testified that the

sweatshirt contained a transfer stain.

[¶22.] Based on Winer’s examination of Diaz’s sweatshirt, he concluded that

“there’s evidence of the - - presumably, the wearer of this garment coming in contact

or manipulating one or more bloody objects, leaving the bloodstains behind in a

transfer mechanism or a swipe and wipe[.]” In regard to the spatter stains, Winer

opined that “[y]ou can tell that these were dropped - - or deposited due to the force

of - - some force propelling them through the air and landing on the garment, but

the specific type of mechanism cannot be determined.”

[¶23.] Investigator Russell and Officer Soto testified about their interrogation

of Diaz and Diaz’s incriminating statements. Investigator Russell testified that

Diaz appeared calm and not afraid. He attempted to explain Diaz’s rights to her,

but she indicated she did not understand. Officer Soto testified that after being

informed of her rights in Spanish, Diaz waived them. He believed Diaz felt more

comfortable speaking in Spanish and the questioning continued in Spanish. Officer

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Soto testified that Diaz did not claim that she was threatened by Salgado or that

she was afraid of him. She also never claimed to have been held captive by Salgado.

According to Officer Soto, when he began pointing out discrepancies in Diaz’s

statements, Diaz changed her story. He began to ask Diaz more in-depth questions

and Diaz responded by answering more slowly, in a “more calculated” manner.

Officer Soto could tell that Diaz was a bit more nervous and, based on his

experience, she felt burdened. Officer Soto testified that Diaz finally said, “We did

it.” After that statement, Diaz walked Officer Soto through her version of what

happened. He testified that Diaz’s demeanor was calm and conversational. He

claimed he did not use a harsh voice and used no threats.

[¶24.] The parties had stipulated to allow the jury to read a physical

transcript with Spanish-to-English translation while the video played depicting

Officer Soto’s interrogation of Diaz in Spanish. The jury observed the interrogation

video and listened to the audio recording in conjunction with reading the translated

interrogation. The jury also observed a video depicting Diaz’s communication with

Salgado while Salgado and Diaz were in adjacent interview rooms.

[¶25.] Salgado testified at trial. Salgado answered the majority of his

questions evasively, claiming a lack of knowledge. The State spent the bulk of its

examination impeaching Salgado or calling Salgado’s attention to his testimony

from Diaz’s transfer hearing. Salgado mainly responded to questions with, “I don’t

remember” or “I don’t know.” However, when given the opportunity, Salgado

claimed that he murdered Guevara. He testified that Diaz did not tell him she had

a plan to kill Guevara and that Diaz did not want to have anything to do with the

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murder. During cross-examination, Salgado refused to answer any more questions.

The court declared Salgado unavailable as a witness and counsel for Diaz read to

the jury excerpts of Salgado’s testimony from the transfer hearing.

[¶26.] Diaz’s mother and sister testified that Diaz never had any problems

until she met Salgado. They also both claimed that Salgado abused Diaz and tried

to have Diaz commit suicide. An expert witness testified about gangs and gang-

related activities. He opined that Salgado was a member of a gang and that

burning Guevara’s car and disposing of evidence indicated a criminally

sophisticated mind. One of Diaz’s middle school teachers from Indiana testified.

The teacher had taught Diaz English as a second language for three years. She

described Diaz as “vivacious, outgoing, made friends easily, always willing to help.”

The teacher testified that Diaz “was a very good student. She caught on quickly.

She worked hard. Her grades were good.” According to the teacher, Diaz’s

attendance and grades suffered and Diaz’s demeanor changed in eighth grade. She

lost friends after becoming pregnant and became, as her teacher described, “quieter

and more sullen.” Diaz’s teacher remained in contact with Diaz’s mother and was

concerned about Diaz’s relationship with Salgado. Diaz ultimately dropped out of

school in ninth grade when she ran away with Salgado.

[¶27.] Dr. David Bean had conducted a psychiatric evaluation of Diaz in

February 2010. He testified to his protocol and the results he obtained. He

diagnosed Diaz with conduct disorder, adolescent-onset type; adjustment disorder

with a depressed and anxious mood; physical abuse; and sexual abuse of a child.

Dr. Bean described conduct disorder as a showing of “social misbehavior of one sort

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or another[.]” He listed different ways an adolescent could show a social

misbehavior: lying and truancy to petty criminal acts; doing “mean, nasty things to

other people”; or, for school-age children, being “generally disobedient” to both

parental figures and those with authority.

[¶28.] Dr. Craig Rypma also testified. He examined Diaz shortly before the

trial, approximately five years after Guevara’s murder. Dr. Rypma also reviewed

Diaz’s other evaluations. As a result of his evaluation of Diaz and in consideration

of the other materials he reviewed, Dr. Rypma formed several diagnostic

impressions. He diagnosed Diaz with adjustment disorder with disturbance of

conduct and emotion (but he ruled out depressive disorder), sexual abuse of a child,

and physical abuse of a child. Dr. Rypma also testified about the characteristics of

a battered woman. He opined that Diaz’s situation exhibited characteristics

consistent with the characteristics of a battered woman. Dr. Rypma further opined

that Diaz’s statements to him were consistent with the characteristics of the four

stages of the cycle of abuse.

[¶29.] After the defense rested its case, Diaz renewed a motion she had made

at the close of the State’s case to dismiss the charges against her, asserting the

State failed to submit sufficient evidence to support a conviction. The court granted

Diaz’s motion to dismiss the conspiracy to commit murder charge, but denied her

motion regarding the remaining charges. During the settling of the jury

instructions, Diaz proposed two instructions related to Diaz’s heightened sense of

imminent harm as a juvenile battered woman. The court denied Diaz’s requested

instructions.

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[¶30.] On January 15, 2015, the jury found Diaz guilty of (1) first-degree

murder, (2) first-degree felony murder (arson), (3) first-degree arson, (4) felony

murder—aggravated kidnapping, and (5) second-degree aggravated kidnapping.

Following the verdict, Diaz moved to dismiss the guilty verdicts for first-degree

felony murder (arson), first-degree arson, and felony murder—aggravated

kidnapping. The court granted Diaz’s motion. After a sentencing hearing, the

circuit court sentenced Diaz to 80 years in the South Dakota State Penitentiary and

a $25,000 fine for first-degree murder and a concurrent 50-year sentence for second-

degree aggravated kidnapping.

[¶31.] Diaz appeals and raises the following issues for our review:

1. Whether the juvenile court abused its discretion when it
transferred Diaz to adult court.
2. Whether the juvenile court abused its discretion in
denying a new hearing on the transfer of Diaz to adult
court after the presentation of newly discovered evidence
concerning a state witness.
3. Whether the South Dakota Supreme Court should
reconsider its decision in Diaz I, 2014 S.D. 27, 847 N.W.2d
144 to reverse the circuit court’s order suppressing Diaz’s
statements to law enforcement.
4. Whether the circuit court inadequately instructed the jury
on the statement of law applicable to the effects of
physical and sexual abuse on a juvenile’s perception of
imminent fear.
5. Whether the circuit court abused its discretion when it
sentenced Diaz to 80 years with no time suspended.
6. Whether Diaz’s 80-year sentence is grossly
disproportionate in violation of the Eighth Amendment.
7. Whether Diaz’s 80-year sentence is a de facto life sentence
in violation of Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010).

Analysis

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A. Transfer to Adult Court

[¶32.] We combine the first two issues. Diaz challenges the juvenile court’s

decision to transfer her to adult court and denial of her motion to vacate its decision

to transfer her to adult court. She claims that the juvenile court based its decision

to transfer her on three interrelated “fallacious” premises. The first fallacy,

according to Diaz, arises from the fact Salgado testified during Diaz’s jury trial in

direct contradiction to his testimony at the transfer hearing. Diaz highlights that

the juvenile court relied on Salgado’s now-discredited testimony at the transfer

hearing in concluding that the idea to murder Guevara originated with Diaz and

that Diaz carried out the plan. Diaz secondly claims the juvenile court based its

decision in part on the now-unreliable opinions of Dr. Hansen and Dr. Dutton. Dr.

Hansen relied on Salgado’s statements, which Salgado retracted at the jury trial.

And Dr. Hansen relied on Dr. Dutton’s opinions. But, according to Diaz, Dr.

Dutton’s opinion is discredited because Dr. Dutton has “been found to have engaged

in sexual harassment himself[.]”

[¶33.] SDCL 26-11-4 gives the juvenile court discretion to transfer a juvenile

to adult court. The juvenile court may consider:

(1) The seriousness of the alleged felony offense to the
community and whether protection of the community requires
waiver;
(2) Whether the alleged felony offense was committed in an
aggressive, violent, premeditated, or willful manner;
(3) Whether the alleged felony offense was against persons or
property with greater weight being given to offenses against
persons;
(4) The prosecutive merit of the complaint. The state is not
required to establish probable cause to show prosecutive merit;

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(5) The desirability of trial and disposition of the entire felony
offense in one proceeding if the child’s associates in the alleged
felony offense are adults;
(6) The record and previous history of the juvenile;
(7) The prospect for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile, if the
juvenile is found to have committed the alleged felony offense,
by the use of procedures, services, and facilities currently
available to the juvenile court.

Id. If the court concludes that transfer is warranted, the court shall enter “findings

of fact upon which the court’s decision is based.” Id. “The findings may not be set

aside upon review unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the witnesses.” Id.

[¶34.] At the time of the transfer hearing, Diaz was alleged to have

committed the offenses of murder and aggravated kidnapping. The court recognized

that the alleged felonies are of the most serious type and, because so, concluded that

the community requires protection. The court also considered that the alleged

felonies were committed in a premeditated, violent, and willful manner, against a

person as opposed to property.

[¶35.] Diaz relies heavily on the fact that Salgado changed his testimony at

trial, admitting that he murdered Guevara and Diaz had nothing to do with it. But,

even if we disregard Salgado’s transfer hearing testimony, Diaz’s statements to law

enforcement support the juvenile court’s conclusion that Diaz exhibited a willing

and premeditated participation in Guevara’s murder and kidnapping. Also, the

record supports the court’s findings that Diaz’s actions were not a product of control

by Salgado or a product of her fear of him. The court found that Diaz did not

exhibit fear of Salgado during her interrogation and inconsistently claimed that

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Salgado forced her during her subsequent psychological examinations. The court’s

finding of prosecutive merit is also supportable. Diaz’s statements to law

enforcement, the Walmart video, and Diaz’s sweatshirt with Guevara’s blood

support Diaz’s participation in Guevara’s murder.

[¶36.] Diaz further claims that the court erred when it transferred her to

adult court given the evidence of her prospects for rehabilitation by the use of

procedures, services, and facilities available to the juvenile court. She emphasizes

that she was only 15 years old at the time of the crime and under the control of

Salgado. 1 Salgado had sexually abused her, and she became pregnant with

Salgado’s baby at 13 years old. Salgado encouraged Diaz to kill herself and even

helped her cut her wrists. She claims that the evidence indisputably showed that

before her relationship with Salgado, she had obtained good grades in school and

was a “happy, joyful little girl.” Diaz contends that she was completely dependent

upon Salgado in Mitchell with no identification, no job, and no way to return home.

She further emphasizes that she had no prior experience with the criminal system.

[¶37.] The circuit court specifically considered Diaz’s claims—her youth, her

relationship with Salgado, her life before her relationship with Salgado, and her

emigrant status. Diaz postures her argument as though this Court should

disregard Salgado’s entire testimony at the transfer hearing and Dr. Dutton’s

1. At the time of her appeal, Diaz was over 21 years old. Had Diaz remained in
juvenile court and been adjudicated, the Department of Corrections would no
longer have jurisdiction over Diaz. See SDCL 26-11A-5. Under SDCL 26-
11A-20, “[n]o adjudicated juvenile may remain within the jurisdiction of the
Department of Corrections beyond the age of twenty-one years.”

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testimony. But Salgado’s refusal to testify at Diaz’s trial does not, as a matter of

law, nullify his transfer hearing testimony. And the circuit court examined Diaz’s

evidence that Dr. Dutton sexually assaulted a student, concluding that it

nonetheless found Dr. Dutton’s testimony at the transfer hearing credible. Our

review of the court’s findings and conclusions support that it would be contrary to

the best interests of Diaz and the public that the juvenile court retain jurisdiction.

B. This Court’s Reconsideration of Diaz I

[¶38.] Diaz asks this Court to reconsider its ruling in Diaz I in light of the

United States Supreme Court’s continuing concern over the rights of juveniles in

criminal court expressed most recently in Montgomery v. Louisiana, ___ U.S. ___,

136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). Diaz claims reconsideration is warranted

because Salgado testified during the jury trial that Guevara’s murder was his idea

and that Diaz did not help. Diaz also claims that this Court did not know when it

decided Diaz I that law enforcement placed a bottle of lighter fluid on the table in

front of Diaz when interrogating her. To Diaz, that tactic was “an abominable

practice with a 15-year-old defendant, clearly designed to intimidate her.”

[¶39.] The State claims Diaz failed to preserve this issue for our review

because she did not specifically move the circuit court to reconsider its suppression

ruling. But Diaz seeks not to have the circuit court reconsider its decision—rather,

she asks this Court to reconsider its ruling in Diaz I. Also, Diaz repeatedly

challenged the admission of her statements before the circuit court. Before trial,

she sought a motion in limine to prevent the admission of the evidence, which the

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court denied. She also requested a standing objection during the trial, which the

court granted. We address Diaz’s issue.

[¶40.] A review of the United States Supreme Court’s opinions in

Montgomery, ___ U.S. ___, 136 S. Ct. 718 and Miller v. Alabama, ___ U.S. ___, 132

S. Ct. 2455, 183 L. Ed. 2d 407 (2012) does not warrant this Court reconsidering its

ruling in Diaz I, 2014 S.D. 27, 847 N.W.2d 144. The United States Supreme Court

opinions adopt the view that juveniles are different than adults and, because so,

certain sentences for juveniles are unconstitutional. Though Diaz I did not involve

a review of Diaz’s sentence, our decision adhered to the principle that Diaz, a

juvenile, deserves “additional, not less, protection of [her] constitutional rights.”

2014 S.D. 27, ¶ 22, 847 N.W.2d at 154 (alteration in original) (quoting In re J.M.J.,

2007 S.D. 1, ¶ 15, 726 N.W.2d 621, 628). We identified that “‘children can be easy

victims of the law’ and ‘may lack the sophistication, knowledge, or maturity to

understand the ramifications of an admission[.]’” Id. So we examined Diaz’s

confession with “special care[.]” Id. A review of the record also reveals that this

Court had before it, when deciding Diaz I, that law enforcement placed a bottle of

lighter fluid in front of Diaz during the interrogation.

C. Jury Instructions on Imminent Fear

[¶41.] Diaz avers that the circuit court failed to adequately instruct the jury

on her theory of the defense because the court’s standard instruction on duress did

not explain the heightened sense of imminent danger felt by an abused minor. In

Diaz’s view, the court’s use of the general reasonable person standard failed to

direct the jury to consider necessary juvenile considerations. She also claims that

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her requested instructions were correct statements of the law and were warranted

by the evidence. She argues that the court’s refusal prejudiced her because

“[w]ithout a specific instruction bringing attention to the fact that a child perceives

danger in a different light than an adult,” she was unable to “argue that the law

supports a different standard for a child than for an adult.” According to Diaz,

“[h]ad the jury been instructed as requested the jury would likely have given more

consideration to the defense of duress and would have probably returned a not-

guilty verdict.”

[¶42.] As we recently stated in State v. Birdshead, “[w]e review a circuit

‘court’s decision to grant or deny a particular instruction’ and ‘the wording and

arrangement of its jury instructions’ for an abuse of discretion.” 2015 S.D. 77, ¶ 14,

871 N.W.2d 62, 70 (quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258,

263). However, “‘a court has no discretion to give incorrect or misleading

instructions, and to do so prejudicially constitutes reversible error.’” State v. Jones,

2011 S.D. 60, ¶ 5 n.1, 804 N.W.2d 409, 411 n.1 (quoting Kadrmas, Lee & Jackson,

Inc. v. Morris, 2010 S.D. 61, ¶ 5 n.1, 786 N.W.2d 381, 382 n.1). Whether the court

gave incorrect or misleading instructions to a defendant’s prejudice is a question of

law reviewed de novo. Birdshead, 2015 S.D. 77, ¶ 14, 871 N.W.2d at 70. We,

therefore, consider jury instructions “as a whole, and if the instructions when so

read correctly state the law and inform the jury, they are sufficient.” State v.

Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113 (quoting State v. Klaudt, 2009 S.D.

71, ¶ 13, 772 N.W.2d 117, 121).

[¶43.] The circuit court instructed the jury that:

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A person may not be convicted of a crime based upon conduct
engaged in because of the use or threatened use of unlawful
force upon the defendant which force or threatened use thereof a
reasonable person in his situation would have been unable to
resist.
This use or threatened use of force must be present and
immediate and of such a nature as to induce in the defendant’s
mind the well-grounded apprehension of imminent death or
serious bodily injury if the act is not done. Threat or fear of
future injury is not sufficient. There must be no reasonable
opportunity for the defendant to escape the danger without
committing the crime. If you have a reasonable doubt whether
the defendant committed the act with which the defendant is
charged under the use or threatened use of force as it has been
defined, you must return a verdict of not guilty.

Instruction 44. In regard to the Battered Woman’s Syndrome, the court instructed

the jury as follows:

Evidence has been presented concerning the characteristics of a
condition known as Battered Woman Syndrome. It is for you to
determine if the defendant was suffering from Battered Woman
Syndrome at the time of the alleged offense. If you find that the
defendant was suffering from Battered Woman Syndrome, you
may then use that evidence in evaluating any claim that the
defendant feared imminent death or serious bodily injury if she
did not carry out the criminal acts for which she is charged.

Instruction 45. Diaz did not object to the court’s instructions. She requested that

the court additionally instruct the jury as follows:

Instruction No. 99: You may consider whether or not the
defendant was battered or abused by Alexander Salgado. If you
decide that the defendant was battered or abused by Alexander
Salgado, you may consider that in determining the
reasonableness of the defendant’s perception of the immediacy of
the harm in light of the defendant’s experience of abuse.
Instruction No. 100: The imminent danger element may be
satisfied when a child believes she is in imminent danger of
death or serious bodily harm even though her abuser is not
physically abusing her at the time. This is because an abused
child can experience a heightened sense of imminent danger
arising from perpetual physical and mental abuse.

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[¶44.] From our review of the court’s instructions, the court adequately

instructed the jury on Diaz’s theory of the defense. The court’s instructions

informed the jury that it could consider whether Diaz (a juvenile) was a battered

woman and that Diaz could not be convicted of a crime if her conduct was the

product of a threatened use of unlawful force of which a reasonable person in Diaz’s

situation would not have been able to resist. These instructions connect Diaz’s

defense to her juvenile status—a reasonable person in Diaz’s situation is a 15-year-

old runaway, an emigrant, and a child sexually and physically abused. Also, Diaz

directs this Court to no authority that the law on duress or imminent fear is

different when the case involves a juvenile.

D. Diaz’s 80-Year Sentence

[¶45.] We combine Diaz’s last three issues. Diaz challenges the court’s 80-

year sentence for several reasons. She claims the court’s sentence is an abuse of

discretion because the court did not adequately consider that Diaz exhibited the

potential for rehabilitation. She further claims that the court’s sentence is grossly

disproportionate to the conduct for which she was convicted. Lastly, Diaz argues

that the court’s sentence is a de facto life sentence in violation of the spirit of

Montgomery, ___ U.S. ___, 136 S. Ct. 718, Miller, ___ U.S. ___, 132 S. Ct. 2455,

Graham, 560 U.S. 48, 130 S. Ct. 2011, and Roper v. Simmons, 543 U.S. 551,

125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

1. Abuse of Discretion

[¶46.] Diaz claims the court abused its discretion when it sentenced her to 80

years without any time suspended because, in her view, the sentence disregarded

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any potential for her rehabilitation. Amicus, Center on Wrongful Convictions of

Youth (CWCY), argues that the circuit court considered only the violent nature of

Diaz’s crime, not her age, developmental immaturity, and vulnerability. CWCY

also contends that the court disregarded peer pressure as a factor and instead

faulted Diaz for seeking out her relationship with Salgado and her choice to

continue that abusive relationship. According to CWCY, the circuit court “misses

the point”—Diaz’s coercive and abusive relationship directly mitigates Diaz’s

culpability and Diaz was less culpable than an adult making a similar decision.

Amicus, The Consulate of Mexico (Consulate), claims that “the court failed to

acknowledge the poverty and dislocation experienced by [Diaz] as a child brought by

a single parent to the United States from Mexico at the age of eleven.” It highlights

that Diaz was brought to the United States less than four years before the

commission of the crime. In the Consulate’s view, the circuit court minimized and

dismissed the factor of “family environment” when considering Diaz’s culpability.

[¶47.] Before sentencing a defendant, the court is to “acquire a thorough

acquaintance with the character and history of the [person] before it.” State v.

Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d 409, 412 (quoting State v. Chase in Winter,

534 N.W.2d 350, 354-55 (S.D. 1995)). “In fashioning an appropriate sentence,

courts must also look to the character and history of the defendant. This requires

an examination of the defendant’s ‘general moral character, mentality, habits, social

environment, tendencies, age, aversion or inclination to commit crime, life, family,

occupation, and previous criminal record’ as well as rehabilitation prospects.” State

v. Bruce, 2011 S.D. 14, ¶ 29, 796 N.W.2d 397, 406 (quoting State v. Bonner, 1998

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S.D. 30, ¶ 19, 577 N.W.2d 575, 580). A sentence within the statutory maximum is

generally reviewed for an abuse of discretion, and we give great deference to the

court’s sentencing decision. State v. McKinney, 2005 S.D. 73, ¶ 10, 699 N.W.2d 471,

476.

[¶48.] The court identified that “[i]n this particular case,” the court must be

guided by the considerations set out in Miller because Diaz is a juvenile. In

particular, the court noted its duty to consider mitigating factors. In doing so, the

court noted that “children tend to have a lack of maturity and an underdeveloped

sense of responsibility that can often lead to recklessness and impulsivity.” The

court also observed that children “are more vulnerable to negative influences and

outside pressures, including from family and peers.” The court observed “that a

child’s character is not as hardened, the mold is not as firm as that of most adults,

their traits not as fixed and therefore more malleable, more capable of change on

average than an adult.” The court further identified four factors it would consider:

(1) Diaz’s chronological age and characteristics, including any immaturity and

failure to appreciate risks and consequences; (2) Diaz’s family and home

environment; (3) the circumstances of the homicide, including the extent of Diaz’s

participation and the manner in which peer pressures may have affected her; and

(4) the reasonable possibility of rehabilitation.

[¶49.] The court then identified Diaz’s youth, her emigrant status, and her

life in poverty. The court considered that Diaz “was a responsible, caring, loving

person” up until a certain age and to some extent in the five years preceding

sentencing. The court noted that it believed that Diaz does “have genuine sorrow[.]”

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The court was “confident” that Salgado’s abuse of Diaz was “true.” But the court

explained that “despite having the repeated efforts of your mother, your older

sisters, school officials, Child Protection Services, [you] stayed with him, even after

your wrists were slit and he left you to die, even after a protection order was

entered against him to keep him away from you. And even when he planned to

leave the State of Indiana alone, you insisted on abandoning your own daughter to

go with him.”

[¶50.] The court considered Diaz’s role in Guevara’s murder. To the court,

Diaz repaid Guevara’s “kindness with the worst kind of evil” and “for no reason.”

The court highlighted that the crime was deliberate, gruesome, wanton, and

chilling, after which Diaz showed no remorse. The court found that Diaz exhibited

prospects for rehabilitation but concluded that much of that would “need to take

place behind the walls of an institution.” The circumstances, in the court’s view,

warranted imposing a “serious punishment.” From our review, the court became

acquainted with Diaz through the trial and sentencing hearing and gave due

consideration to the sentencing factors. The court did not abuse its discretion when

it sentenced Diaz.

2. Gross Disproportionality

[¶51.] We conduct a de novo review to determine whether Diaz’s sentence is

grossly disproportionate to the gravity of the offense. State v. Chipps, 2016 S.D. 8,

¶ 31, 874 N.W.2d 475, 486. Under the Eighth Amendment to the United States

Constitution, “a criminal sentence must be proportionate to the crime for which the

defendant has been convicted.” Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001,

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3009, 77 L. Ed. 2d 637 (1983). Yet, “[t]he Eighth Amendment does not require strict

proportionality between crime and sentence. Rather, it forbids only extreme

sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan,

501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d (1991) (Kennedy, J.,

concurring in part and concurring in the judgment). If an appearance of gross

disproportionality results after the initial comparison of the gravity of the offense

against the harshness of the penalty, only then will we compare Diaz’s sentence to

those imposed on other criminals for the same crime within or, if necessary, outside

the jurisdiction. Chipps, 2016 S.D. 8, ¶¶ 34, 38, 874 N.W.2d at 487, 489.

a. Gravity

[¶52.] “[T]he gravity of the offense refers to the offense’s relative position on

the spectrum of all criminality.” Id. ¶ 35. “Comparisons can be made in light of the

harm caused or threatened to the victim or society, and the culpability of the

offender.” Helm, 463 U.S. at 292, 103 S. Ct. at 3011. As we noted in Chipps,

additional principles aid in judging the gravity of the offense. 2016 S.D. 8, ¶ 35, 874

N.W.2d at 487-88.

[N]onviolent crimes are less serious than crimes marked by
violence or the threat of violence. . . . Stealing a million dollars
is viewed as more serious than stealing a hundred dollars. . . .
[A] lesser included offense should not be punished more severely
than the greater offense. . . . It also is generally recognized that
attempts are less serious than completed crimes. Similarly, an
accessory after the fact should not be subject to a higher penalty
than the principal. . . . Most would agree that negligent conduct
is less serious than intentional conduct. . . . A court, of course, is
entitled to look at a defendant’s motive in committing a crime.
Thus a murder may be viewed as more serious when committed
pursuant to a contract. This list is by no means exhaustive.

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Id. (quoting Helm, 463 U.S. at 292-94, 103 S. Ct. at 3011 (internal citations

omitted)). “In conducting the threshold comparison between the crime and the

sentence, we also consider other conduct relevant to the crime” of conviction. State

v. Garreau, 2015 S.D. 36, ¶ 12, 864 N.W.2d 771, 776.

[¶53.] The jury convicted Diaz of first-degree murder. In State v. Rice, we

recognized that “homicide has long been considered ‘the highest crime against the

law of nature, that man is capable of committing.’” 2016 S.D. 18, ¶ 14, 877 N.W.2d

75, 80 (quoting 4 Williams Blackstone, Commentaries 177-78). “It is axiomatic that

the unlawful, premeditated killing of one person by another . . . is one of the most

egregious acts contemplated by our criminal justice system.” Garreau, 2015 S.D.

36, ¶ 11, 864 N.W.2d at 775. Guevara’s death resulted from a premeditated killing,

and Diaz took no step to protect Guevara’s life. Each act Diaz took during her role

in the murder of Guevara exhibited an indifference to Guevara’s life. Diaz lured

Guevara to her death under the false pretense of an invitation to join her new

friends for a cookout. Diaz then gave no warning to Guevara, despite having

opportunity to do so at Walmart and when Diaz and Guevara were alone in the

vehicle. Diaz’s conviction of first-degree murder places Diaz’s crime at the

uppermost level on the spectrum of criminality.

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b. Harshness

[¶54.] The harshness component looks, not to the maximum penalty

available, but “to the penalty’s relative position on the spectrum of permitted

punishments.” Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488. Diaz only challenges

her sentence for first-degree murder. First-degree murder is a Class A felony and

carries a maximum sentence of death or mandatory life and a maximum fine of

$50,000. SDCL 22-16-12; SDCL 22-6-1. However, neither a sentence of death nor a

sentence of mandatory life is a permitted punishment against a juvenile. Roper,

534 U.S. 551, 125 S. Ct. 1183; Miller, ___ U.S. ___, 132 S. Ct. 2455. This means that

the spectrum of permitted punishments does not include or end at death as it would

in our review of an adult sentence under the Eighth Amendment. 2 Under SDCL 22-

6-1, the harshest penalty a court can impose against a juvenile convicted of this

State’s most severe crime is “a term of years in the state penitentiary, and a fine of

fifty thousand dollars[.]” 3

2. In Miller, the United States Supreme Court recognized that “Roper and
Graham establish that children are constitutionally different from adults for
purposes of sentencing.” ___ U.S. ___, 132 S. Ct. at 2464. Therefore, the
“imposition of a State’s most severe penalties on juvenile offenders cannot
proceed as though they were not children.” Id. at ___, 132 S. Ct. at 2466.
Following the decision in Miller, we recognized that “[s]entencing courts must
consider what the United States Supreme Court termed the ‘mitigating
qualities of youth.’” State v. Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d 460,
465 (quoting Miller, __ U.S. ___, 132 S. Ct. at 2467).

3. In Springer, we examined whether a sentence of 216 years constitutes a de
facto life sentence in violation of the Eighth Amendment. 2014 S.D. 80, ¶ 15,
856 N.W.2d at 466. We recognized that neither Graham nor Miller explicitly
applied to sentences for a term of years. Springer argued, however, that his
(continued . . .)
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See Helm, 463 U.S. at 298, 103 S. Ct. at 3013 (“consider the sentences that could be

imposed on other criminals in the same jurisdiction”).

[¶55.] In Chipps, we recognized that “[f]or sentences of imprisonment, the

question is one of degree—e.g., ‘[i]t is clear that a 25-year sentence generally is

more severe than a 15-year sentence[.]’” 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488

(alterations in original) (quoting Helm, 463 U.S. at 294, 103 S. Ct. at 3012). The

comparison is really “one of line-drawing.” Helm, 463 U.S. at 294, 103 S. Ct. at

3012. However, in judging the harshness of the penalty, we also consider the

possibility of parole. Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488.

[¶56.] Here, the court sentenced Diaz to 80 years with no time suspended for

her conviction of first-degree murder. We also consider that Diaz would be eligible

for parole at 55 years old, after 40 years served. Chipps, 2016 S.D. 8, ¶ 37, 874

N.W.2d at 489. Based on the gravity of the crime of first-degree murder, Diaz’s

sentence for a term of years allowing her the possibility of early release does not

appear grossly disproportionate. Therefore, we will not compare Diaz’s sentence to

__________________
(. . . continued)
sentence violated Graham and Miller because the sentence is the functional
equivalent of life without parole. Id. ¶ 17. We disagreed in part because
Springer had the possibility of parole when he would be 49 years old. The
Court noted that without evidence that 49 years old falls outside of Springer’s
practical life expectancy, his sentence could not be the functional equivalent
of life without parole. Id. ¶ 22. We further concluded that Springer had a
meaningful opportunity to obtain release as required by Graham. Id. ¶ 25.
Similarly, here, the circuit court specifically considered the mitigating
qualities of youth and Diaz’s opportunity to obtain release. Diaz would be
eligible for parole possibly after 40 years served. Diaz presented evidence
that her life expectancy at the time of trial was 83.7 years. If she obtained
release on parole after serving 40 years, Diaz would be 55 years old.

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those imposed on other criminals for the same crime within or outside the

jurisdiction.

3. De Facto Life Sentence

[¶57.] Diaz relies on her expert testimony that she could live for an estimated

68.7 additional years. At the time of her sentence, five years had elapsed and Diaz

was 20 years old. According to Diaz’s evidence, a sentence of 80 years is beyond her

life expectancy and constitutes a de facto life sentence in violation of Montgomery,

___ U.S. ___, 136 S. Ct. 718, Miller, ___ U.S. ___, 132 S. Ct. 2455, Graham, 560 U.S.

48, 130 S. Ct. 2011, and Roper, 543 U.S. 551, 125 S. Ct. 1183. CWCY joins Diaz’s

argument, asserting that Diaz’s sentence is the equivalent of life without parole

because the sentence fails to provide a meaningful opportunity for release. CWCY

insists that “[p]roviding parole eligibility after four decades in prison denies [Diaz]

an opportunity to live a meaningful life in the community and contribute to society.”

[¶58.] Diaz was 20 years old when she was sentenced to 80 years in prison,

but had already been incarcerated for five years. Based on SDCL 24-15A-32, she

could be released on parole after serving 40 years in prison. Diaz asks this Court

not to “consider possible parole as a factor in deciding whether the court has

imposed a life sentence.” But Diaz’s meaningful opportunity for release requires

this Court to consider Diaz’s opportunity for parole. See Springer, 2014 S.D. 80,

¶ 24, 856 N.W.2d at 469. Diaz’s sentence is not a de facto life sentence. Diaz

directs us to no law supporting that release at 55 years old or after 40 years in

prison means Diaz is without a meaningful opportunity to obtain release. See id.

¶ 25.

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[¶59.] Affirmed.

[¶60.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and SOMMERS, Circuit Court Judge, concur.

[¶61.] SOMMERS, Circuit Court Judge, sitting for KERN, Justice,

disqualified.

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