791 N.W.2d 788
S.D.2010Background
- Iwan owns Belvidere Store in Belvidere, Jackson County, South Dakota.
- Stern Oil distributes fuel to Belvidere and other outlets and initially extended credit to Iwan.
- Due to an unpaid balance, Stern Oil switched to cash-on-delivery for future transactions.
- Iwan, in Jackson County, handed a sealed envelope containing checks to Stern Oil’s driver, Lindholm, for delivery to Stern Oil.
- Lindholm mailed the sealed envelope from Jackson County to Stern Oil; Stern Oil deposited the check, which was later returned for insufficient funds; Iwan did not cover it.
- Iwan was charged with grand theft by insufficient funds check; venue was challenged in Hutchinson County; the circuit court denied dismissal, ruling venue proper there; the Supreme Court reversed and remanded for dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper burden of proof for venue | State supports preponderance as venue burden | Iwan urged proof beyond a reasonable doubt | Preponderance burden applied |
| Whether Hutchinson County is proper venue for the offense | State argues venue proper due to effects in Hutchinson | Iwan argues acts occurred in Jackson; no Hutchinson venue | Venue not in Hutchinson; acts occurred in Jackson; dismissal remanded |
| Effect of mailing the check on venue via agency | State relies on mailing to create venue in Hutchinson | Iwan did not control Lindholm; Lindholm’s mailing not imputable as venue basis | Mailing did not establish venue; acts occurred in Jackson; dismissal remanded |
Key Cases Cited
- State v. Greene, 86 S.D. 177 (1971) (venue burden not required to be beyond reasonable doubt; venue is separate from guilt)
- State v. Sullivan, 2002 SD 125 (2002) (affirmed preponderance standard for venue)
- State v. Haase, 446 N.W.2d 62 (S.D. 1989) (venue determination proper to preponderance)
- State v. Graycek, 335 N.W.2d 572 (S.D. 1983) (venue analysis and standards in SD)
- Tines v. State, 553 S.W.2d 913 (Tenn. Crim. App. 1977) (agency/availing company to create venue)
- State v. McMillian, 111 P.3d 1154 (Or. Ct. App. 2005) (agency and act-based venue considerations)