(dissenting).
[¶ 42.] Today, this Court overturns two first-degree rape convictions. As the sole ground for its decision, the Court finds that the prosecutor improperly commented on the defendant’s decision not to testify. It would seem that the prosecutor used the wrong tense in referring to the defendant’s voluntary statement to law enforcement. This grammatical gaffe produces a windfall for the defendant: a new trial. In reaching this result, the Court misinterprets the prosecutor’s remarks, upsets our established standard of review, and misapplies the new rule it purports to initiate in this case. All the prosecutor’s comments that this Court finds offensive to the Fifth Amendment related to the defendant’s voluntary statement to a law enforcement officer, not to his decision to decline taking the stand.
[¶ 43.] While the defendant was under investigation for having sexual contact with his eight-year-old daughter during visitation, he walked into the sheriffs office unannounced to talk with the deputy sheriff handling the case. When the deputy asked him about his daughter’s accusations, he denied them repeatedly but also said that he did not remember because he had been on medication. Nonetheless, he said that while giving his daughter massages, “his hand could have slipped and touched her private area.” When asked by the deputy if some of his daughter’s allegations were true, he replied, “some of the things.” He told the deputy, “tell [her] I am sorry,” and he conceded that “some of these things happened.” When asked about whether he inserted his penis in his child’s buttocks, he responded, “How did you find out about that?” Realizing the implication of his admissions, he said, “I don’t want to go to jail.” “I need to be put in a psychiatric ward.” When the deputy asked if his daughter was lying, he *205replied, “She is not lying. I am not lying. I just don’t remember.”
[¶ 44.] In closing argument, the prosecutor quoted the defendant’s admissions to the deputy and challenged his denials mixed with concessions that “some of these things happened.” The prosecutor never argued that the jury should infer guilt from the defendant’s silence at trial. On the subject of the defendant’s statement, the prosecutor first commented on the defendant’s claimed inability to remember. The prosecutor said that the defendant “agrees to certain points, but what is his fall back?” — “I don’t remember.” This was a theme the prosecutor began in his opening statement.
There’s several reasons he gives to [Deputy Sheriff] Misti Gray about why [his daughter’s accusation] is not true, but then you’ll also hear later on in the interview after he says he doesn’t recall, he says, “Well, some things happened.” He says, “I’m sorry that I hurt her. I just want us to get counseling.” He goes on further to say, “I don’t want to go to jail. Some things are true. I need to be put in a psychiatric ward.” That’s what he says during an interview with Misti Gray who is investigating allegations of him raping his daughter. But intermixed with that, again, is, “I don’t remember. I don’t recall. Can we go off the record?” [Note the use of the present tense.]
Thus, in his closing argument, the prosecutor continued: “Mr. Ball knows what happened and we know that by his statements. He can’t hide from those.” The prosecutor then repeated throughout his closing the comment that the defendant “knows what happened.”
[¶ 45.] Toward the end of his remarks, the prosecutor said, “the defendant knows what happened, but he’s not talking. He’s not telling us ivhat happened. As far as he’ll say, ‘Some things are true.’ ” Again, it is clear from the remarks themselves and the context in which they were made that the prosecutor was referring to the defendant’s statement. The quoted language ends with a reference to the defendant’s admission that “some things are true,” and the emphasized language again refers to the defendant’s lack of explanation for saying that some things are true without detailing which things and at the same time claiming that he does not remember. The prosecutor reminded the jury that when asked about whether he inserted his penis in his child’s buttocks, the defendant responded, “How did you find out about that?” Hence, the prosecutor’s argument: “The defendant knows what happened. He raped her. He wouldn’t tell law enforcement. He stopped giving the details as far as the allegations, although some of the allegations are true.... The defendant knows what happened, but he’s not talking. He’s not telling us what happened. As far as he’ll say, ‘Some things are true.’ ”
[¶ 46.] It is important to note that in both his opening and closing remarks, the prosecutor repeatedly referred to the defendant’s statement using both past and present tense terms. Thus, from the beginning of the case the jury was accustomed to hearing the statement referred to in both tenses. Perhaps, as a matter of grammatical style, the use of the present tense in closing argument was artless, even careless, but to warrant granting a mistrial the jury would have to “naturally and necessarily ” conclude that the prosecutor was referring to the defendant’s decision not to testify. See authorities cited below. On the contrary, if we give any deference to the trial court’s findings, these comments related to nothing other than that the defendant “knows” what happened and is not “telling” in his statement to the investigator. The trial judge ob*206served the entire case and this is exactly what the judge found. We are not here to hyper-serutinize the transcript to find new ways to interpret these remarks.10
[¶ 47.] In overriding the trial court’s on-the-seene findings, the Court today adopts a controversial new standard of review allowing it to substitute its fact findings for the trial court’s on motions for mistrial. Citing five federal decisions from the Ninth Circuit, the Court adopts that circuit’s standard. It might make some sense to consider using the Eighth Circuit standard, since we are in that federal circuit and our cases may well be reviewed on habeas by that circuit. But the Eighth Circuit uses the standard we have used for decades: abuse of discretion. Triplett, 195 F.3d at 995 (standard of review). Only the Ninth Circuit uses a de novo factual review in this instance. And despite its claim that other courts have adopted the de novo factual review standard for closing arguments, the cases the Court cites simply do not stand for that proposition.11
[¶ 48.] Consequently, the bench and bar in South Dakota must now submit to Ninth Circuit jurisprudence, which can only bring our own established process into confusion. Why confusion? Because the Ninth Circuit cannot agree with itself on what the proper standard should be. In decisions handed down after the five cases the Court cites here, in both published and unpublished opinions, various panels of the Ninth Circuit, acknowledging contradictory cases, have stated that “[t]he standard of review for prosecutorial comment on a defendant’s failure to testify or post-arrest silence is unclear.” See, e.g., United States v. Hoac, 990 F.2d 1099, 1103 (9th Cir.1993) (citing contradictory cases) (emphasis added); United States v. Holub, 89 F.3d 847 (table), 1996 WL 344619 (9th Cir.1996). Nonetheless, the Court claims that this new standard is appropriate because we have adopted it in instances involving searches and confessions. Stanga, 2000 SD 129, 617 N.W.2d 486; Hirning, 1999 SD 53, 592 N.W.2d 600. We adopted that standard in those cases based on clear direction from the United States Supreme Court, not direction from the Ninth Circuit.
[¶ 49.] Equipped with its new standard of review, the Court then announces that this case “must” be reversed, presumably because the trial court was legally compelled to grant a mistrial. As the United States Supreme Court warned in United States v. Hasting, “when courts fashion rules whose violations mandate automatic reversals, they ‘retreat from their responsibilities, becoming instead “impregnable citadels of technicality.” ’ ” 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96, 106 (1983) (citing R. Traynor, The Riddle *207of Harmless Error 14 (1970) (quoting Kav-anagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A.J. 217, 222 (1925))). If an issue of prosecutorial misconduct is preserved with a timely objection at trial, we review the trial court’s ruling under the standard of abuse of discretion. State v. Owens, 2002 SD 42, ¶ 101, 643 N.W.2d 735, 758. Here, there was no record objection during closing argument. After the jury retired to deliberate, defense counsel moved for a mistrial. Until today, we have always reviewed such motions under the abuse of discretion standard. “A trial court’s decision to deny a motion for mistrial will only be reversed if the decision was an abuse of discretion.” State v. Garnett, 488 N.W.2d 695, 698 (S.D.1992) (citations omitted). See also State v. Bogenreif, 465 N.W.2d 777 (S.D.1991); State v. Blalack, 434 N.W.2d 55 (S.D.1988); State v. McDowell, 349 N.W.2d 450 (S.D.1984). The Eighth Circuit applies the same standard. See Triplett, 195 F.3d at 995 (abuse of discretion standard applies to mistrial motion on prosecutor’s comment on defendant’s failure to testify).
[¶ 50.] If we adhere to our settled rule, and leave to the Ninth Circuit its unsettled rule, then we must acknowledge that trial courts have considerable discretion not only in granting or denying a mistrial, but also in determining the prejudicial effect of claimed misconduct. State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987). “An actual showing of prejudice must exist to justify the granting of a mistrial.” State v. Farley, 290 N.W.2d 491, 494 (S.D.1980) (citation omitted).
[¶ 51.] It is true that in several circumstances, we review questions of constitutional error de novo, but we still give deference to the trial court’s findings on the underlying facts. As the Supreme Court wrote in declaring de novo review for Fourth Amendment questions, “May-ing said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas, 517 U.S. at 699, 116 S.Ct. 1657.
[¶ 52.] Even when reviewing constitutional error, therefore, we ought to indulge the judge’s firsthand impressions and findings because the trial court is in the best position to evaluate the significance of any alleged wrongdoing. We have explained many times that judges have wide discretion in controlling the proceedings before them and that no one is entitled to a perfect trial. This standard is not to be brushed aside. As one appellate court explained, trial judges are
best able to measure the impact of improper argument, the effect of the conduct on the jury, and the results of [the judge’s] efforts to control it. Our review is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on the jury or to sense the atmosphere of the courtroom.
Caldarera, 705 F.2d at 781-82.
[¶ 53.] Taking its model from the Ninth Circuit, however, the Court here acts as if it were in a better position to assess the impact of the prosecutor’s remarks simply by virtue of having a transcript. Armed with the transcript, the Court reweighs the evidence, arriving at the dubious conclusion that the trial court would have so ruled had it had a transcript. The Court cites several remarks not identified by the defense in its mistrial motion or even in its appellate briefs and then concludes that the trial court was forced to rely on its recollection, which ostensibly must be inferior to having a transcript. This turns our review standard upside down. A judge’s *208contemporary sense impressions of trial proceedings and juror impact are entitled to deference. To insinuate that trial courts cannot remember what they just heard and to reckon that our possession of a transcript thus elevates our examination on appeal subverts our established appellate procedure.
[¶ 54.] Invoking another controversial technique, the Court uses a “divide and conquer” analysis to deconstruct the prosecutor’s closing argument. As the authors of Federal Standards of Review note,
Early cases indicate that almost any comment on a defendant’s silence, either at trial or before, would constitute a Griffin or Doyle violation. Review nevertheless is meant to focus on the potential effect on the jury rather than on the specific content of the comment, and recent applications have been based on this focus. Therefore, in- defining what is a prohibited comment, courts in effect must perform a harmless error assessment, which places the comment in the context as to the whole record.
See 2 Childress and Davis, Federal Standards of Review § 12.01, 12-5-12-6 (3d ed. 1999) (citation omitted). That is exactly the opposite of what this Court does today. The Court concludes, “Because the prosecutor made many such present tense comments coupled with a rhetorical question to the jury and the, specific comment that Ball was not telling ‘us’ (the jury) what happened, the mistrial motion must be granted.” Rather than focusing on the totality of the record and the potential effect of the prosecutor’s comments on the jury, the Court delves into an exhaustive critique of the prosecutor’s remarks divorced from their impact on the jury. We are not here to parse and weigh events in a trial as though we were trial judges. Yet the Court dissects the prosecutor’s remarks and analyzes them in a light contrary to how the trial court perceived them. The rigorous exegesis in the majority opinion comes not from defense counsel’s argument, but from this Court’s de novo factual findings deduced from the transcript in usurpation of the trial court’s function. And this occurs despite the fact that when defense counsel brought the matter to the trial judge’s attention, the remark complained of was only the following:
Your Honor, during closing [the prosecutor] made a statement. I wrote it down. “He’s not talking” was in the present tense.
After hearing from the prosecutor, the trial court ruled:
The motion is denied. I heard the statement and it was in direct reference to Misti Gray’s testimony, what Mr. Ball discussed with her, and [the prosecutor] was summarizing the events and the arguments and says he’s not talking. I didn’t take it — -it was used more of a slang and not intended to be in the present tense in reference to Mr. Ball not taking the stand.
No other remarks were brought to the trial judge’s attention.
[¶ 55.] In reviewing a prosecutor’s challenged comments, we examine whether (1) it was the prosecutor’s manifest intention to refer to the defendant’s silence; or (2) the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s silence. Triplett, 195 F.3d at 995 (8th Circuit abuse of discretion review standard on direct appeal). If it is asserted that the prosecution referred to the defendant’s silence, we must determine whether the jury was thereby invited to infer guilt from the defendant’s decision not to testify. United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, *20998 L.Ed.2d 998 (1988). A prosecutor’s intent is not “manifest” if there is an equally plausible explanation of the prosecutor’s remarks. Collins, 972 F.2d at 1406. Thus, the challenged remarks must be considered in the context in which they were made. Montoya-Ortiz, 7 F.3d at 1179 (citation omitted).
[¶ 56.] After concluding that the first prong of this test has not been met, the Court then misapplies the second prong: the question is whether the complained of comments were “of such character that the jury would naturally and necessarily take [them] to be a comment on the failure of the accused to testify.” Knowles, 224 F.2d at 170 (emphasis added). See also Weddell v. Meierhenry, 636 F.2d 211 (8th Cir.1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981). Under this prong, the remarks “had to be so worded that a jury must construe [them] wrongly, not that any jury reasonably could.” See 2 Childress and Davis, Federal Standards of Review § 12.01,12-8 (3d ed. 1999) (citation omitted) (emphasis added). With the jury having heard the prosecutor refer to the defendant’s statement in both the past and present tense from the beginning of the trial, we are in no position to conclude that the argument was so worded that the jury would have necessarily construed it wrongly.
[¶ 57.] Nonetheless, in yet another twist on the “divide and conquer” approach, the majority only seems to adopt a new rule today. When it is required to apply the new rule, it reverts to the old rule, citing our earlier case of Wilson, 297 N.W.2d at 482 (holding that “No reasonable jury could infer it to be a reference to defendant’s failure to testify”). Under the old test, the question was whether the jury “would” or “could” infer that the prosecutor was referring to the defendant’s decision not to testify. Id. Under the new test, the question is whether the jury would “naturally and necessarily ” make that inference. Now, with the Court’s divided concoction of old and new rules, our standard becomes contradictory and confusing.
[¶ 58.] In reviewing the prosecutor’s remarks, it is also important for us to recognize a critical distinction. Undoubtedly, a prosecutor’s comment on a defendant’s exercise of the Fifth Amendment right to remain silent can constitute error justifying reversal. Yet, the rule does not apply when a defendant did not remain silent by voluntarily giving a statement to police. See State v. Olguin, 88 N.M. 511, 542 P.2d 1201, 1203 (N.M.Ct.App.1975). When a defendant has chosen to not remain silent and to give a statement to law enforcement, the prosecutor is entitled to comment on that statement, to point out its lack of credibility, and to highlight the fact that the defendant omitted important details in the statement. State v. Johnson, 102 N.M. 110, 692 P.2d 35, 39 (N.M.Ct.App.1984), overruled in part on other grounds by Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237 (N.M.1989). The fact that a defendant omits details in a statement is not the kind of silence that is constitutionally protected because the defendant did not remain silent with respect to the subject matter of that statement. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). When a defendant gives a statement but refuses to answer specific questions, the answers provide a context lending probative value to the silent responses, and comment on those silent responses is not prohibited. United States v. Goldman, 563 F.2d 501 (1st Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 768 (1978).
[¶ 59.] In Johnson, a case dealing with a similar issue, the court recognized that “[t]he state may question the plausibility *210of an exculpatory statement,” and thus the court, concluded that “[t]he jury, having listened to many minutes of argument addressed to the statement, would have understood the [challenged] remark in that context.” 692 P.2d at 40. Likewise, our conclusion here should be that the jury having heard the prosecutor’s present tense comments about the defendant’s statement to law enforcement from the beginning of the trial would have understood them to be comments on that statement.
[¶ 60.] Even if the prosecutor’s comments could be held to have violated the defendant’s right against ■ self-incrimination, the convictions may still be affirmed if we- can “declare a belief that [the comments were] harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The State bears the burden of proof on this question. Id. We must answer the question: would the jury have convicted the defendant absent the comments? Hasting, 461 U.S. at 510-11, 103 S.Ct. 1974. In considering the probability that the prosecutor’s comments turned the jury verdict, we examine three elements: the persuasiveness of the comments, the relative strength of the State’s case, and the effectiveness of the trial judge’s response to the comments. See Chapman, 386 U.S. at 22, 87 S.Ct. 824. Of course, these elements are not to be applied formulaically: our inquiry is whether a court, after examining these elements in the totality of circumstances, can declare that the improper comments did not alter the verdict.
[¶ 61.] As to the persuasiveness element, we all recognize that a prosecutor’s request of jurors to infer guilt from silence is most improper. See Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968). A comment on a “defendant’s failure to testify cannot be labeled harmless error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal.” Id. at 523-24, 88 S.Ct. 1133. In Anderson, the prosecutor commented:
Mr. Anderson could have gotten on the stand and told you, “No, I didn’t sign that,” or, “I wasn’t up to the Calverts [trucking firm] and somebody else told me about it, as I told Sergeant Sonberg [the arresting officer].”
In other words, you can consider that, when a person could be expected to know something about something, and he doesn’t tell you what obviously he must know, why, then you can draw certain inferences from that.
Id. at 526, 88 S.Ct. 1133. In that case, the trial court also gave an instruction on the adverse inference the jury could draw from the defendant’s failure to testify. Here, no such suggestion was made. The prosecutor was referring to the defendant’s partial admission to the investigator that some things the child said were true, but he would not say which things were true. See United States v. Passaro, 624 F.2d 938, 945 (9th Cir.1980) (refusing to reverse conviction where prosecutor had made “no attempt to link a conclusion of guilt with defendant’s silence[.]”). See Bernard v. State, 540 N.E.2d 23, 25 (Ind.1989) (comments were prolix and only marginally improper because vague and disjointed).
[¶ 62.] Here, the persuasive strength of the prosecutor’s remarks were minimal. They were indirect references, alluding to the defendant’s earlier statement. Granted, the prosecutor’s rhetorical question to the jury — What's true, John? — walked the line, but it clearly was in reference to the defendant’s comment to the deputy that “some things are true.” See United States *211v. Johnston, 127 F.3d 380, 396 (5th Cir.1997) (“The prosecutor’s argument, although unartful, does not demonstrate manifest intent to comment on the defendants’ silence, nor would a jury necessarily construe it as a comment on their failure to testify.”).
[¶ 63.] The next element we consider is the strength of the State’s case. In several instances, we have resolved the question of harmless error on the fact that the evidence against the defendant was “overwhelming.” Stanga, 2000 SD 129, ¶ 20, 617 N.W.2d at 491; State v. Schuster, 502 N.W.2d 565, 570 (S.D.1993). Obviously, the effect of a persuasive comment depends on the relative strength of the case against the defendant. See Anderson, 390 U.S. at 524, 88 S.Ct. 1133; United States v. Ashford, 924 F.2d 1416 (7th Cir.1991); United States v. Pallais, 921 F.2d 684 (7th Cir.1990). While the “overwhelming” nature of the evidence may be determinative in some cases, the inquiry is often not so elementary. See, e.g., Splunge v. State, 641 N.E.2d 628, 630 (Ind.1994) (finding error harmless after considering intent of prosecutor, directness of reference, extensiveness of reference, and overwhelming nature of evidence). In effect, a court must measure the strength of the case by considering the evidence without the challenged impropriety. See Hasting, 461 U.S. at 511-12, 103 S.Ct. 1974; Fontaine v. California, 390 U.S. 593, 595-96, 88 S.Ct. 1229, 1230-31, 20 L.Ed.2d 154 (1968) (per curiam); Williams v. Lane, 826 F.2d 654, 667 (7th Cir.1987). We cannot say here that the evidence was overwhelming. Nonetheless, the record shows without contradiction that the defendant had regular access to the victim, she gave a credible rendition of events, and he admitted that “some” of his child’s allegations were true: He even exclaimed, “How did you find out about that?” when confronted with his daughter’s explicit accusation. With these admissions, certainly the case was strong.
[¶ 64.] Lastly, we measure the effectiveness of any corrective measures the trial judge implemented. Here, defense counsel made no record objection at the time of the comments. Instead, counsel approached the bench for an off-the-record discussion after the prosecutor’s closing argument. When all the arguments were over and the jury retired to deliberate, defense counsel then moved for a mistrial on the record. The court was never requested to give an admonition and, of course, could not at the time the comments were made because the alleged impropriety was not brought to the court’s attention until after argument. Nonetheless, it is a questionable proposition that trial judges should give, sua sponte, curative admonitions on a defendant’s right not to testify, as such instructions themselves may draw unwarranted and prejudicial attention to a defendant’s exercise of that right. See Williams v. State, 426 N.E.2d 662, 667 (Ind.1981) (Under Indiana law: “[T]he jury should be given an admonition [regarding an improper prosecutorial comment] when the defendant requests one, and not othenvise, and ... the test to be applied in determining whether or not to grant a mistrial is whether or not such an admonition would be fully effective if given.”); Dooley v. State, 271 Ind. 404, 393 N.E.2d 154, 156 (Ind.1979).
[¶ 65.] In any event, the trial judge gave the pattern instruction on a defendant’s right not to testify at the close of the case, stating, “Every defendant in a criminal case has the absolute right not to testify. You must not draw any inference of guilt against the defendant because he did not testify.” We presume that jurors will follow the court’s limiting instructions. State v. Maves, 358 N.W.2d 805 (S.D.1984); State v. No Heart, 353 N.W.2d 43 (S.D. *2121984). We should not presume that jurors are juridical infants, incapable of distinguishing between proper and improper legal inferences, especially in light of this instruction. Under all these circumstances, even if the prosecutor’s remarks were improper, we can declare beyond a reasonable doubt that the remarks were harmless.
[¶ 66.] In summary, the prosecutor’s comments were not directed at the defendant’s decision not to testify and it was not an abuse of discretion to refuse to grant a mistrial. The defendant’s own admissions, oblique and evasive as they may have been, were far more damaging than the prosecutor’s purportedly improper remarks. I would affirm the convictions.
[¶ 67.] GILBERTSON, Chief Justice, joins this dissent.
. The Court accuses the dissent of taking the prosecutor's comments out of context. To assert this, the Court relies on the paragraphing used by the court reporter. This again illustrates the problem of trying to discern the meaning of oral comments from the cold record. If the quoted sentences were placed at the top of the very next paragraph, or given their own paragraph, the context the trial court found can be substantiated.
The defendant knows what happened, but he’s not talking. He's not telling us what happened. As far as he’ll say, "some things are true.”
The child has told everybody who will listen what happened.
. The question here is not whether we review constitutional violations de novo. The Court goes beyond that. Here, the Court makes its own de novo fact findings from the transcript. No court other than the Ninth Circuit has explicitly done that. The Court here claims that the Eighth Circuit case of Triplett uses that standard. Nothing in that case, or any other Eighth Circuit case, indicates that such fact findings are made de novo.