#27301-a-LSW
2015 S.D. 90
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KENNETH DALE THOMASON a/k/a KENNETH D. THOMASON JR., 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
CAROLINE SRSTKA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ELLERY GREY Grey Law Prof. LLC Rapid City, South Dakota Attorneys for defendant and appellant.
**** ARGUED ON SEPTEMBER 1, 2015
OPINION FILED 11/18/15 #27301
WILBUR, Justice
[¶1.] After this Court vacated defendant’s conviction of aggravated theft by
deception, the State brought new charges against defendant for forgery and offering
false or forged instruments for filing, registering, or recording in a public office.
Defendant moved to dismiss the charges asserting that double jeopardy, collateral
estoppel, and res judicata barred the State’s successive prosecution. Defendant
further asserted that the indictment should be dismissed for improper venue. The
circuit court denied defendant’s motion to dismiss, and a jury found defendant
guilty of all charges. Defendant appeals. We affirm.
Background
[¶2.] In 2014, this Court vacated Kenneth Dale Thomason Jr.’s (Ken)
conviction of aggravated theft by deception. State v. Thomason, 2014 S.D. 18, 845
N.W.2d 640. We held that the State failed to prove all the elements of the offense.
Id. ¶ 30. After we vacated his conviction, the State charged Ken with two counts of
forgery in violation of SDCL 22-39-36 and SDCL 22-3-3 (aid and abet), and two
counts of offering false or forged instruments “for filing, registering, or recording in
a public office” in violation of SDCL 22-11-28.1 and SDCL 22-3-3 (aid and abet).
Ken moved the circuit court to dismiss the charges. He asserted that double
jeopardy, collateral estoppel, and res judicata barred the State’s subsequent
prosecution of him because the State had a full and fair opportunity to litigate the
newly-indicted charges during the first trial. Ken also moved to dismiss the
indictment for improper venue. The circuit court denied Ken’s motion to dismiss.
During a jury trial in October 2014, the State presented much of the same evidence
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and testimony it had presented during the first trial. See Thomason, 2014 S.D. 18,
845 N.W.2d 640.
[¶3.] In the second trial, the State presented evidence that Ken and his wife
Kim purchased the Gold Town Hotel in Lead, South Dakota on a contract for deed
in 2004. Kim’s mother, Barbara Langlois, testified that she loaned Ken and Kim
money for a down payment on the contract. In exchange for the loan, Ken and Kim
gave Barbara a quitclaim deed to the Hotel. Barbara did not file the deed
immediately. She, however, continued to loan Ken and Kim money for the Hotel.
Barbara testified that she loaned them $328,133.01 in September 2006 because Ken
and Kim were facing foreclosure on the Hotel. She claimed that in total she loaned
Ken and Kim approximately $500,000.
[¶4.] According to Barbara, she “got mad” because Ken and Kim were not
paying on their loans. She explained that she contacted her attorney Brad
Schreiber to assist in recovering money from Ken and Kim. Schreiber testified that
he advised Barbara to file her 2005 quitclaim deed and serve an eviction notice on
Ken and Kim. Barbara filed the quitclaim deed in November 2007 and served Ken
and Kim an eviction notice. Thereafter, Schreiber assisted Ken, Kim, and Barbara
in arriving at an agreement related to the debt.
[¶5.] On January 7, 2008, the parties signed a “Letter of Intent/Agreement.”
The letter explained that it was intended “to memorialize numerous emails,
telephone conversations and correspondence concerning the [Hotel] and the debt
due and owing to Barbara Langlois.” The letter noted that Ken was set to close on a
loan for $350,000 on January 9, 2008, but that Barbara’s recently-recorded 2005
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quitclaim deed could impact that loan. Schreiber testified that Ken refused to say
where the loan was coming from because Ken believed Barbara might interfere.
Nonetheless, the Letter of Intent/Agreement set forth that, following the loan
closing and no later than January 14, 2008, Ken and Kim would pay Barbara
$200,000 as partial payment on the debt due and owing. Ken and Kim also agreed
to “enter into and execute a promissory note and mortgage in favor of Barbara
Langlois in an amount not less than $300,000[.]” In exchange for Ken and Kim
executing the agreement, Barbara would provide Ken and Kim a quitclaim deed
conveying to them all her interest in the Hotel.
[¶6.] The parties signed the Letter of Intent/Agreement, and Schreiber
testified that he gave Ken a quitclaim deed. Although Barbara conveyed her
interest in the Hotel to Ken and Kim, she also conveyed an equal interest to Ken’s
son, Kenneth Dale Thomason, III (Dale). Barbara testified that she included Dale
within the conveyance because she wanted Dale to be part owner of the Hotel.
Schreiber testified that, by including Dale on the deed, Ken and Kim would not be
able to sell the Hotel unless all three parties—Ken, Kim, and Dale—signed off on
the conveyance.
[¶7.] On January 14, 2008, Ken did not remit payment of $200,000 to
Barbara. Rather, Ken emailed Schreiber and informed him the money would come
in a week. Schreiber claimed that Ken told him that he was able to close on the
loan. When payment did not arrive in a week, Schreiber attempted to contact Ken.
Schreiber learned that Ken and Kim had left the country and were in the
Dominican Republic. This concerned Schreiber and he decided to conduct a title
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search on the Hotel. Through Lawrence Title Company, Schreiber learned that
“there [were] some strange things going on.” He received a copy of a joint warranty
deed that conveyed the Hotel to a “Chris and Shalece Vinson” and a “Special Power
of Attorney” instrument appointing Ken and Kim as Dale’s attorney-in-fact to
execute legal documents related to the Hotel. Schreiber testified that the joint
warranty deed bore the signature of “Kenneth Dale Thomason, III” with a “POA”
notation. Schreiber relayed this information to Barbara.
[¶8.] Unable to contact Ken and Kim, Barbara filed a complaint with the
Lead Police Department. On May 1, 2008, a Lawrence County Grand Jury indicted
Ken on charges of aggravated theft by deception over $100,000 in violation of SDCL
22-30A-3. When Ken and Kim returned from the Dominican Republic in 2012, a
grand jury issued a superseding indictment, which added charges of aiding and
abetting and an alternate charge of aggravated theft by obtaining property without
paying.
[¶9.] A jury found Ken guilty of aggravated theft by deception and this
Court reversed. See Thomason, 2014 S.D. 18, 845 N.W.2d 640. Relevant here is
Dale’s testimony from the first trial. Dale testified in the first trial that he did not
sign the Special Power of Attorney used in the transaction between Ken, Kim, and
the Vinsons on January 10, 2008. He further testified that he did not authorize Ken
or Kim to convey his interest in the Hotel. The State relied on the allegedly forged
Special Power of Attorney and the fact Ken signed the joint warranty deed on Dale’s
behalf as evidence that Ken was guilty of aggravated theft by deception.
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[¶10.] In the second trial, Dale again testified that he did not sign the Special
Power of Attorney and did not give Ken authority to enter into the agreement with
the Vinsons on his behalf. The Special Power of Attorney bore a notary signature
by an “Adrian Polk” from Florida. Dale testified that he had never met Polk,
though he was aware that Polk operated a pawn shop in Florida. According to Dale,
on January 10, 2008—the day of the transaction—he was in Illinois with a broken
vehicle. Dale relayed that Ken had called him and requested that he sign a power
of attorney so Ken and Kim could obtain a mortgage on the Hotel. Dale refused and
told Ken to wait until he returned to South Dakota. When Dale returned to South
Dakota, Ken told Dale that they found a way to get the loan without him.
[¶11.] Dale first learned of the agreement between Ken, Kim, and the
Vinsons approximately two months after Ken and Kim had left for the Dominican
Republic. According to Dale, Chris Vinson arrived at the Hotel and began to change
the locks. Chris told Dale about the agreement and that Dale was issued a check
for one third of the sale price. The State entered a copy of the check into evidence at
trial. The check bore Dale’s signature. Dale testified that he did not sign the check.
He claimed that he had no knowledge of the check and did not give Ken authority to
sign his name. Kim testified that Ken signed Dale’s name on the check and joint
warranty deed and included the POA notation on the joint warranty deed.
[¶12.] John Billion also testified. Billion is general counsel and the chief
operating officer for Getty Abstract & Title Company in Sioux Falls, South Dakota.
He described the January 10, 2008 transaction between Ken, Kim, and the Vinsons.
Billion was not personally involved in the closing, but testified that he reviewed all
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the documents in preparation for his testimony. He then explained that the closing
involved a lease-to-buy-back agreement whereby the Vinsons would pay Ken, Kim,
and Dale $350,000 and receive title to the Hotel as security. Under the agreement,
Ken, Kim, and Dale were to pay the loan over several years, and Ken and Kim were
to continue to occupy and manage the Hotel.
[¶13.] According to Billion, the closing occurred in Sioux Falls because the
Vinsons were Sioux Falls residents. However, Getty Abstract merely facilitated the
closing and execution of documents. Billion explained that because the property is
located in Lawrence County, the documents were required to be filed and recorded
with the Lawrence County Register of Deeds.
[¶14.] Billion then testified about the closing process. After paying
approximately $140,000 in expenses, Getty Abstract issued separate disbursement
checks to Ken, Kim, and Dale for $68,895.71 each. Getty Abstract also prepared a
settlement statement, which detailed the contract price, amounts received, and
amounts disbursed. Ken signed Dale’s name and included a “POA” notation
acknowledging receipt of the settlement statement. Ken further signed an “Owners
Affidavit” on Dale’s behalf with “POA” notation. This affidavit indicated that it was
to be returned to Lawrence Title Company and that it was required by “Lawrence
Title Company to issue its [title] insurance on the property” owned by Ken, Kim,
and Dale. According to Billion, Lawrence Title Company was to handle the filing
and recording with the register of deeds. At the conclusion of the closing, Getty
Abstract sent Lawrence Title Company the completed paperwork, including the
joint warranty deed and Special Power of Attorney, by overnight mail.
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[¶15.] Ruthie Weirs is a senior title examiner and the office manager at
Lawrence Title Company. She testified that Lawrence Title Company became
involved in the transaction on a request from the lender to do a title search and
issue title insurance on the property. According to Weirs, Lawrence Title Company
prepared a report and sent it to the lender. Lawrence Title Company also received
the joint warranty deed and Special Power of Attorney from Getty Abstract and
recorded both with the Lawrence County Register of Deeds Office. Sheree Green
from the Lawrence County Register of Deeds Office testified that the Special Power
of Attorney and joint warranty deed were recorded with the Lawrence County
Register of Deeds Office on January 29, 2008.
[¶16.] Adrian Polk testified about the Special Power of Attorney instrument.
He stated that he did not notarize the instrument for Dale. Although Polk had been
a notary for the State of Florida, he let his seal expire in September 2001. He last
saw his seal located in his desk drawer at the store. He first learned that his seal
had disappeared in 2010, after an attorney from South Dakota called and inquired
about the Special Power of Attorney bearing Polk’s notary seal. Polk has known
Ken since 2002, when Ken worked at Polk’s pawn shop in Florida. Polk
acknowledged that he may have met Dale in the past, but claimed that he did not
know Dale.
[¶17.] At the conclusion of the State’s case, Ken moved for a judgment of
acquittal asserting lack of venue, res judicata, collateral estoppel, and double
jeopardy. In regard to improper venue, Ken argued that the State failed to present
any evidence that he possessed or forged any document in Lawrence County or that
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he altered or created any document in Lawrence County. Ken next argued that res
judicata barred the State’s second prosecution because the State was essentially
relitigating an issue that could have been litigated in Ken’s first trial. In particular,
he asserted that ”[i]nstead of arguing grand theft, they’re simply taking one
component of that, the alleged forgery, and using that to come back and get a
second bite at the apple.” Lastly, Ken claimed that collateral estoppel and double
jeopardy precluded the State from using the same evidence and witnesses in the
second prosecution as it had used in the first trial.
[¶18.] The court denied Ken’s motion for a judgment of acquittal. The court
concluded that there were sufficient facts before the jury to decide venue. It further
ruled that the State’s second prosecution for different charges involving different
elements did not implicate double jeopardy, collateral estoppel, or res judicata. The
jury found Ken guilty of all charges, and the court sentenced Ken to a term of years
on each charge to run concurrently. Ken appeals and raises the following issues for
our review:
1. Whether the circuit court erred when it ruled that double jeopardy and res judicata do not apply.
2. Whether the circuit court erred when it denied Ken’s motion to dismiss for improper venue.
Standard of Review
[¶19.] Whether a person is twice placed in jeopardy is a question of law
reviewed de novo. State v. Lafferty, 2006 S.D. 50, ¶ 4, 716 N.W.2d 782, 784 (citing
State v. Cates, 2001 S.D. 99, ¶ 6, 632 N.W.2d 28, 33). Venue, however, is a question
for the trier of fact. State v. Haase, 446 N.W.2d 62, 65 (S.D. 1989). Therefore, on
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appeal, we accept “the evidence and the most favorable inferences that the jury
might have fairly drawn therefrom to support the verdict.” Id. at 65-66 (citing State
v. Boyles, 260 N.W.2d 642 (S.D. 1977)).
Analysis
Double Jeopardy and Res Judicata
[¶20.] Ken argues that double jeopardy and res judicata preclude the State
from retrying him on the same facts under a new theory of guilt when the State had
a full and fair opportunity to prosecute him for the newly-indicted charges in its
first trial. Ken directs this Court to Bank of Hoven v. Rausch, for the proposition
that “a person should not be twice vexed for the same cause and public policy is best
served when litigation has a repose.” See 449 N.W.2d 263, 266 (S.D. 1989). More
specifically, Ken relies on this Court’s four-part test in Springer v. Black, for his
argument that res judicata precludes the State’s successive prosecution. See 520
N.W.2d 77, 79 (S.D. 1994). The test questions: “(1) [w]hether the issue decided in
the former adjudication is identical to the present issue; (2) whether there was a
final judgment on the merits; (3) whether the parties in the two actions are the
same or in privity; and (4) whether there was a full and fair opportunity to litigate
the issues in the prior adjudication.” Id. Ken then asserts that the first part is met
because “both trials were virtually identical as they involved nearly all of the same
witnesses and exhibits” and because the harm to be redressed “in the second
litigation is essentially the same harm [the State] tried to address in the first
litigation[.]” The second and third factors are met because the parties are the same
and there was a final judgment on the merits after this Court reversed Ken’s first
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conviction. Lastly, according to Ken, the fourth factor is met because “no additional
discovery was conducted and more importantly no substantively new evidence was
presented during the second trial.”
[¶21.] In response, the State asserts that the Blockburger test controls. The
Blockburger test provides: “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304,
52 S. Ct. 180, 182, 76 L. Ed. 2d 306 (1932); State v. Weaver, 2002 S.D. 76, ¶ 10, 648
N.W.2d 355, 359. The State then contends that double jeopardy and res judicata do
not bar the State’s successive prosecution because aggravated theft by deception,
forgery, and offering false or forged instruments for filing, registering, or recording
are separate crimes that require proof of additional facts the others do not.
[¶22.] “The Fifth Amendment of the United States Constitution and Article
Six of the South Dakota Constitution forbids placing a person in jeopardy twice for
the same offense.” State v. Danielson, 2010 S.D. 58, ¶ 7, 786 N.W.2d 354, 356
(citing U.S. Const. amend. V; S.D. Const. art. VI, § 9). In State v. Dillon, we
recognized that “[t]hese provisions shield criminal defendants from both multiple
prosecutions and multiple punishments for the same criminal offense if the
Legislature did not intend to authorize multiple punishments in the same
prosecution.” 2001 S.D. 97, ¶ 13, 632 N.W.2d 37, 43 (emphasis added); United
States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556 (1993).
However, “[t]he defense of double jeopardy has no application to another or different
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offenses.” State v. Pickering, 88 S.D. 548, 552, 225 N.W.2d 98, 100 (1975). “[T]he
constitutional and statutory prohibitions against double jeopardy apply only to a
second prosecution for the same act and crime, both in law and in fact, upon which
the first prosecution was based.” Id.
[¶23.] Here, Ken was first charged and convicted of aggravated theft by
deception over $100,000 in violation of SDCL 22-30A-3. That statute provides in
relevant part that:
Any person who obtains property of another by deception is guilty of theft. A person deceives if, with intent to defraud, that person:
(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. However, as to a person’s intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise; . . .
(3) Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom the deceiver stands in a fiduciary or confidential relationship[.]
Id. At Ken’s first trial, the State alleged that Ken violated SDCL 22-30A-3 when he
obtained the proceeds of the lease-to-buy-back agreement by deception and did not
pay Barbara $200,000 as agreed to in the Letter of Intent/Agreement. Thomason,
2014 S.D. 18, ¶ 18, 845 N.W.2d at 644.
[¶24.] In its successive prosecution, the State charged and convicted Ken of
two counts of forgery in violation of SDCL 22-39-36, and two counts of offering false
or forged instruments for filing, registering, or recording in violation of SDCL 22-11-
28.1. Forgery occurs when “[a]ny person who, with intent to defraud, falsely makes,
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completes, or alters a written instrument of any kind, or passes any forged
instrument of any kind[.]” SDCL 22-39-36. A violation of SDCL 22-11-28.1 occurs
when “[a]ny person who offers any false or forged instrument, knowing that the
instrument is false or forged, for filing, registering, or recording in a public office,
which instrument, if genuine, could be filed, registered, or recorded under any law
of this state or of the United States[.]” At the second trial, the State presented
evidence that Ken passed the forged Special Power of Attorney and joint warranty
deed with the intent to defraud and offered the false or forged documents for filing,
registering, or recording in a public office.
[¶25.] From our review of the State’s successive prosecution of Ken, we
cannot say that the State placed Ken twice in jeopardy for the same criminal
offense. The successive prosecution did not involve “the same act and crime, both in
law and in fact, upon which the first prosecution was based.” See Pickering, 88 S.D.
at 552, 225 N.W.2d at 100. Although the State used Ken’s conduct related to the
Special Power of Attorney and joint warranty deed in both trials, the State did not
litigate in the first trial whether Ken in fact caused those documents to be forged
with the intent to defraud. The State also did not use the evidence to litigate
whether he offered those documents for filing, registering, or recording. Rather, the
act litigated in Thomason was whether Ken “obtained by deception [Barbara’s]
property worth over $100,000[.]” See 2014 S.D. 18, ¶ 17, 845 N.W.2d at 644
(emphasis added). Furthermore, on the face of the statutes defining the offenses, it
is clear the crimes of (1) aggravated theft by deception, (2) forgery, and (3) offering a
false or forged instrument for filing, registering, or recording are distinct and
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separate. See Dixon, 509 U.S. at 703-05, 113 S. Ct. at 2859-60 (Blockburger test
satisfied); see also Pickering, 88 S.D. at 552-54, 225 N.W.2d at 100-01. Because the
State’s successive prosecution did not place Ken twice in jeopardy, the circuit court
did not err when it ruled that double jeopardy did not apply.
[¶26.] However, Ken further contends that the principles of res judicata
embodied within the Double Jeopardy Clause mandate that the State “should have”
prosecuted him for all charges during the first trial. Ken emphasizes that the State
had a full and fair opportunity in the first trial to prosecute him for the charges it
brought in the second trial. He directs this Court to Justice Brennan’s concurring
opinion in Ashe v. Swenson, which suggests that “except in most limited
circumstances, [the State must] join at one trial all the charges against a defendant
that grow out of a single criminal act, occurrence, episode, or transaction.” See 397
U.S. 436, 453-54, 90 S. Ct. 1189, 1199, 25 L. Ed. 2d 469 (1970) (Brennan, J.,
concurring). We, however, held in Pickering “that the plea of double jeopardy is
available only when the separate offenses are in substance the same, so that the
evidence which proves the one would prove the other and if an essential element of
one is not necessarily present in the other there is no former jeopardy.” 88 S.D. at
553, 225 N.W.2d at 101. Because, here, Ken was not twice placed in jeopardy for
the same act and because the offenses are separate and distinct, the State’s
successive prosecution did not violate his constitutional rights under the Fifth
Amendment of the United States Constitution and Article Six of the South Dakota
Constitution.
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Improper Venue
[¶27.] Ken next asserts that the circuit court erred when it did not dismiss
the indictment for improper venue. He claims that the State presented no evidence
that he “possessed, altered, forged or passed with intent to defraud the relevant
documents in Lawrence County.” Rather, according to Ken, the State only
presented evidence that Getty Abstract in Sioux Falls caused the Special Power of
Attorney and joint warranty deed to be filed in Lawrence County.
[¶28.] A defendant has a right to be prosecuted in the county where the crime
was committed. S.D. Const. art. VI, § 7; SDCL 23A-16-3. The State has the burden
of proving proper venue by a preponderance of the evidence. State v. Iwan, 2010
S.D. 92, ¶ 9, 791 N.W.2d 788, 789. Direct proof, however, is not required. State v.
Greene, 86 S.D. 177, 182-83, 192 N.W.2d 712, 715 (1971). Venue “is sufficiently
established ‘if the circumstances and evidence tend to the conclusion in a manner
satisfactory to the jury that the place of the crime corresponds with that set forth in
the information.’” Id. (quoting State v. Dale, 66 S.D. 418, 284 N.W.2d 770 (1939)).
[¶29.] Here, the jury received three instructions on venue. The court
informed the jury that in order to return a guilty verdict it must “determine if venue
is proper in Lawrence County” as to each charge and that the State has the burden
of proving that Ken committed the acts charged within Lawrence County. The
court further instructed the jury: (1) “When a public offense is committed partly in
one county and partly in another county or the acts or effects thereof constituting or
requisite to the offense occur in two or more counties, the venue is in either county”;
and (2) “Where the commission of a public offense involves the use of the mail, the
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venue of the offense is in any county where the letter is deposited or delivered, or
where it is received by the person to whom it is addressed.”
[¶30.] From our review of the record, there is sufficient evidence for the jury
to have concluded that venue was proper in Lawrence County on all charges. Ken
resided in Lawrence County. The Hotel is located in Lawrence County. Further,
Ken and Kim were the record owners of the Hotel with previous experience
executing mortgage documents related to the Hotel in Lawrence County. The State
presented evidence of email exchanges between Ken and Schreiber evincing Ken’s
knowledge that the original documents related to a deed on the Hotel would need to
be filed in Lawrence County. Concerning the lease-to-buy-back agreement, Ken
signed an owner’s affidavit, which indicated that it would be mailed to Lawrence
Title Company. The settlement statement, also signed by Ken, provided that
payments were to be made in Lawrence County. From the evidence, the jury could
reasonably infer that Ken offered the false or forged Special Power of Attorney and
joint warranty deed (via his knowledge that Getty Abstract would mail the
documents to Lawrence County to complete the closing) for filing, registering, or
recording in Lawrence County. See SDCL 22-11-28.1. Ken could not complete his
intended conveyance without having the Special Power of Attorney and joint
warranty deed recorded in Lawrence County. Contra Iwan, 2010 S.D. 92, ¶ 14, 791
N.W.2d at 790-91 (no knowledge that check for insufficient funds would be mailed
to a different county).
[¶31.] Further, although there is no direct evidence that Ken forged the
Special Power of Attorney, the crime of forgery is of a nature to be completed in
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secrecy. Here, the jury heard that Ken called Dale prior to Ken’s trip to Sioux Falls
and asked Dale to execute a power of attorney. The jury could reasonably infer
from this that Ken’s forgery scheme began in Lawrence County. The jury could
further infer that Ken’s forgery scheme continued in Lawrence County when Ken,
with the intent to defraud, caused the Special Power of Attorney and joint warranty
deed to be passed in Lawrence County in order to complete the lease-to-buy-back
agreement conveying Dale’s interest in the Hotel. See SDCL 22-39-36. Therefore,
the evidence and most favorable inferences therefrom support that the State
established venue in Lawrence County by a preponderance of the evidence.
[¶32.] We affirm.
[¶33.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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