State v. Schmolke
108 So. 3d 296
La. Ct. App.2013Background
- The district attorney appeals a trial court grant of Schmolke’s motion to quash under La.C.Cr.P. art. 532(A)(5) charging misapplication of payments under La.R.S. 14:202(A).
- The trial judge quashed after considering factual defenses beyond the bill of information and bill of particulars.
- The appellate court conducts de novo review, holding that weighing factual defenses was improper and requires reversal and remand.
- Elemental scope: 14:202(A) requires a contract, receipt of contract funds, and a knowing failure to apply funds to settling material/labor claims.
- Bill of information alleges a contract with Alvin and Catherine Phelps to reconstruct a home; total contract $210,540; payments to Schmolke totaled about $189,091.20; two subcontractor liens were filed.
- Detective testimony notes liens and about $21,000 difference between contract price and payments; project reportedly incomplete; homeowners disputed indebtedness to Schmolke.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the bill, as amended, allege the crime elements of 14:202(A)? | State maintains facts could prove knowing misapplication. | Bill does not allege knowingly misapplied funds. | Yes; elements could be alleged to support conviction. |
| Did the trial court improperly weigh factual defenses at a quash proceeding? | Trial court should focus on legal sufficiency, not merits. | Court may consider factual defenses to the charge. | Trial court erred; de novo standard governs. |
| May the legislature’s knowledge element be cured by amendment to the bill? | Amendment can cure pleading deficiencies. | Definitive pleading of knowledge was lacking. | Deficiency may be cured on remand via amendment. |
| Is the charge properly quashable when the information states non-knowingly misapplied funds? | Misapplication, if proven, supports the charge; defense merited no quash. | Civil contract dispute; misapplication not shown. | Motion to quash on 532(5) grounds fails; reversal and remand for further proceedings. |
Key Cases Cited
- State v. Lagarde, 672 So.2d 1102 (La.App. 4 Cir. 1996) (accept true the bill's facts and decide whether a crime is charged)
- State v. Spears, 929 So.2d 1219 (La. 2006) (elements of misapplication require more than unpaid claims)
- State v. Byrd, 708 So.2d 401 (La. 1998) (motion to quash limited to pre-trial pleas; cannot address guilt/merit)
- State v. Cohn, 783 So.2d 1269 (La. 2001) (specific knowledge element; statute does not criminalize bad business deals)
- State v. Weems, 595 So.2d 358 (La.App. 2nd Cir. 1992) (reversal where state did not prove knowing mispayment for all claimed)
- State v. Masino, 214 La. 744 (La. 1949) (defendant may have a meritorious defense; not grounds to quash indictment)