*1 bе, 10-46, appears to ch. provisions SDCL cited a mistake law. aboye, Dakota,
under the facts
STATE of South
Plaintiff
Labor,
Dept.
Explicitly, the trial court ruled that “Dorh- warning not fair that his con- out’ did have and, also, that “Dorhout duct was criminal” legal stan- could not have ascertained the applicable to his conduct.” dards mine.) supplied all, essentially arguing First of he is and, vague are and uncertain the statutes therefore, stаtutorily not a crime has been certainty.
defined with definiteness and charged with a false or Dorhout was attempting escape fraudulent return 10-45-48.1(1). evade sales tax under SDCL in mind that this defendant was ex- Bear plained the Dakota sales tax law on South trying to us
several occasions. He is now
tell
legitimate
he
that he has a
defense because
ignorant
made to
of the law. Reference is
Dale,
The court determined defendant, upon if he does not bent law, to learn its content understand the meaning. charges every man The law pre- knowledge of the standards with the (Emphasis supplied scribed the law. mine.) Thus, join reversing the trial court’s
granting for the Dorhout’s Motion to Dismiss writing. forth in this rationale set *2 Barnett, Gen., Hubbard, Atty.
Mark Wade Gen., Pierre, Atty. plaintiff Asst. for appellee. Adams,
Thomas E. Adams of Voelker and Lead, appellant. for defendant and MILLER, Chief Justice. (Heftel)
Philip appeals Heftel convictions cоmmitting grand for theft in violation of 22- 30A-3(3) being an habitual offender un- der SDCL 22-7-8. We affirm.
FACTS Deadwood, Dakota, Heftel moved to South July, employed at the and was Sil- Deadwood, Upon arriving in verado Casino. (not joint opened savings account a he account) cheeking at the local branch of the had al- Norwest Bank.1 Heftel claimed he ways keep been unable checkbook bal- the bank to monitor the anced so he relied on savings in the account. balance On the afternoon told his roommate Dave Green (Green) expecting hun- that he was “thirteen dred and some odd dollars” to be wired to Green, Accompanied the account. drive-up drove to the Norwest Bank window shortly part p.m.; after 3:00 the main already closed. bank was Heftel asked the teller whether some mon- ey expecting he had been had been trans- Although ferred into his account. the bank’s transfer, yet computer did not show the questioned persоnnel bank teller other $1,300 transfer of learned wire yet posted to Heftel’s ac- received but not down the account count. She then wrote transfer, balance, gave including the slip paper to Heftel. friend, Leigh girl joint tenancy his then Ann Ricker.
1. The account was a account with being drive-up busy, he were convicted of an habitual of- Because -window began on Heftel. He teller to wait fender. another slip from the second requested a withdrawal guilty grand found Heftel theft $1,350. The and tried to withdraw teller by deception stealing from Norwest $700 computer and found there checked her teller *3 16, September Bank on 1992. In a subse- enough money in his account. When
was not court, quent trial to the Heftel was found to transaction, in- questioned the she was she 15,1993, be an habitual offender. On March by that had formed the first teller the bank seventy years he was sentenced to in the yet posted. a transfer that was not received Penitentiary, South Dakota State with twen- The second teller then overrode the bank’s ty years suspended on condition he make computer, the numbers on the with- misread appeals, restitution to Norwest Bank. He $1,550 slip gave and to Heftel —two drawal stating three issues. requested. he had hundred dollars more than money and left the bank. Heftel took the DECISION delays, the Due to various bank withdrawal overdrafting account did not show Heftel’s DID THE I. TRIAL COURT ERR IN computer September until up on the bank’s DENYING HEFTEL’S MOTION Meanwhile, 16, September at 3:30 in 17. on ACQUIT- FOR OF JUDGMENT afternoon, gone Heftel had to the drive- the TAL BASED ON INSUFFICIENT in up inquired and about the balance window EVIDENCE? (which by now included the his account Our standard of review of a denial of transfer). $1,300wire He did not ask wheth- judgment acquittal a motion for of is whether any money deposited had to the er been forth from State set sufficient evidence which through subsequent account a wire transfer. reasonably the could find the defendant computer a the teller said the showed When Buller, guilty charged. of the crime v. State dollars, $1,360 of Heftel with- balance over — (S.D.1992) denied, 883 cert. N.W.2d in drew cash and left the bank. $700 -, 248, 121 U.S. 113 S.Ct. L.Ed.2d 181 17, September On Norwest discovered (1992); Gallipo, State v. happened had and contacted the Law- what (S.D.1990). sufficiency determining In of County Department. After rence Sheriff’s appeal, question is evidence investigation, Heftel was arrested in whether there is sufficient evidence charged grand by deception. theft which, jury, if record believed suffi in an unrelated finding guilt beyond of а cient to sustain a matter, arraigned charges Heftel doubt; making in this determina reasonable and child A Part II Informa- assault abuse. tion, evidence, accept the court will listing previous felony tion seven convictions fairly inference drawn the most favorable alleging Heftel was an habitual criminal therefrom, support which will the verdict. proceeding. in that At was filed State (S.D. Svihl, 269, State arraignment, requested Heftel that his Banks, 19, 1992); 387 N.W.2d arraignment grand charge on the theft be (S.D.1986). time; delаyed granted until a later the court jury, not It is the function of the his motion. evidence, conflicts in the determine resolve A Part II Information identical to the one credibility, weigh witness the evidence. given in the action was assault strongest presumption in afford the fa- “We morning arraignment of Heftel’s jury’s credibility.” vor of the determination grand charge on on the theft October (S.D. Arguello, State v. 502 N.W.2d During (S.D. Martin, 1993); 493 N.W.2d informed the Part II Information had Huber, 1992); filed, previous been listed the felonies al- leged, questiоned whether Heftel had re- crime, information, including All in copy ceived a and advised elements of tent, through possible may proven him the if be circumstantial sentence enhancements Davi, teller who had made the testified error evidence. money long period The “state of mind of the Heftel counted the 856-57 offense, time he commits the of time. actor at the acts, from his
may be determined
conduct
concerning
then testified
his conver-
Green
cir-
fairly deduсible from the
and inferences
September:
sations with Heftel on the 16th of
Huber,
intent The use of the terms merely desig tentionally’ ‘knowingly1 or Q you And then he told much did —How culpability required that the is some nate[s] you actually he tell was in it when he thing negligence or recklessnеss.” more than to went check? Shilvock-Havird, 472 v. N.W.2d State [$]1,350, They A had the whole (S.D.1991) Balint, (citing 777 State v. 426 wire, into his account. Huber, (S.D.1988); N.W.2d N.W.2d Q Again? III, 472; Barrientos, v. 444 N.W.2d State Again. A time. second (S.D.1989); Bailey, 464 N.W.2d (S.D.1991)). Heftel testified that he did not notice the given him extra mistake on the $200 Heftel ad money 14th. He swore the additional expecting that he was a wire vised Green account on the 16th had come from a second $1,300. approximately At the transfer of wire transfer to his account from Andrew window, drive-up he filled out a withdrаwal Goldstein, an Arizona man he claimed owed $1,550 $1,350 slip for and received mis money. him Green, was in the vehicle with take. who Heftel, money, County Department in- testified: “He withdrew the Lawrence Sheriffs vestigator it out at the window. And James Charles testified that and he counted two, telephone given him for counted it out three times. And he said number Heftel had no-good and his paid he’d been extra dollars. And Goldstein was “a number” [$]200 out, through police investigation it he extra.” The the Arizona had сounted and was $200 provides part: influencing or which the deceiver knows to be 2. SDCL 22-30A-3 fiduciary another to whom he stands in a Any person property who obtains of another by deception guilty person relationship!)] of theft. A de- confidential ceives he: if with intent defraud (3) impression Fails to- a false which correct reinforced, previously the deceiver created or anyone by appellant’s concerning original name. Investi- claim his to find
failed
had not been a second
gation
properly
revealed there
sentence is not
before this court.
into Heftel’s Norwest account.
wire transfer
Holter,
(S.D.
State
falsely.
claims that Green testified
Sheridan,
1983);
ar-
showed that after Heftel was
Evidence
Additionally,
SDCL 23A-32-14.
truck,
rested,
wrecked Heftel’s
sold
Green
concerning proportion
where no information
kept
money,
property
some of his
ality
presented
has been
to the trial
belonging
gave
property
other
to Heftel
accept
“this court will not
an invitation to
Leigh
also admitted
Ann Ricker. Green
guess
second
the trial court on its sentence.”
receiving
probation
he
stolen
Holloway,
property.
object
Heftel’s failure to
to his sen
improper
tence or raise a claim it was
at the
Although the evidence was conflict
trial court level has resulted in waiver of this
obviously
ing,
jury
believed Green’s testi
appeal.
issue for
mony
about the mistake
that Heftel knew
Accоrd,
money.
he took the
before
III. DID THE TRIAL
ERR IN
COURT
(S.D.1992) (“[i]n
Weber,
25, 28
ENHANCING HEFTEL’S SEN-
specifically
order to determine what Weber
TENCE
THE
DUE TO
MANNER
intended,
weigh
had to
the credibili
*5
IN
THE PART II
WHICH
INFOR-
ty
Fey”).
proper
It is not a
of
Weber
MATION WAS FILED?
evidentiary
of
court to resolve
function
this
arraigned
charge
Heftel was
on the assault
jury
judge
conflicts:—the
is the exclusive
of
29,1992.
on
State filed a Part II
credibility
weight
of witnesses and the
of
proceeding
Information in that
and Heftel
the evidence in South Dakota. State v. Bat
provided
copy.
admitted he hаd been
At
test,
(S.D.1980); Huber,
295 N.W.2d
attorney request-
that
Heftel’s
at 476. Heftel has failed to
356 N.W.2d
delay arraignment
ed that the court
on the
presumption in favor of the
overcome the
grand
judge granted
theft count. The
credibility.
jury’s
Arguello,
of
determination
motion.
Svihl,
552;
II.
EX-
WAS HEFTEL’S SENTENCE
place:
ceeding,
following exchange
took
AND
CESSIVE
DISPROPORTION-
THE
I
a Part II Information
ATE?
COURT:
see
[referring
has been filed in that matter
A review of the record from the lower
charges].
this
to the child abuse
Was
objection
court shows no
to the sentence was
II
filed in
Part
Information
be also
during
sentencing hearing
made
Heftel’s
nor
92-847?
any
presented
support
data
his claim
MS. BRADY: Your Honor —Is 847
disproportionality.
repeatedly
have
theft,
grand
Your Honor?
declared:
This court has stated оn numerous occa
THE
Yes.
COURT:
presented
sions that an issue not
at the
Yes, Your Honor. That was
MS. BRADY:
ap
trial
will not
at the
level
be reviewed
your
morning.
the one
desk this
pellate
giv
The trial
must
level.
be
right[J
THE COURT: All
any
opportunity
en an
to correct
claimed
proceeded to read each
appeal.
we will review it on
The court then
error before
Holt,
Information,
felony
ques-
prior
from the
State v.
O’Connor,
as to whether he understood
jurisdiction plea. to take the judge “shall date[.]” note thereon (1941), 40, 41 297 N.W. added.) S.D. Majority goes great to rehearing (reversing 67 S.D. N.W. However, lengths explain this. no nota- (1940) jurisdiction). due to lack of See judge appear tions оn the Part II State, supra. Information, Honomichl v. also thus it cannot be said to have him. It been on his desk Supreme the state should not The Court of it. he was unaware of placing papers judge’s on a trial countenance procedure “filing.” argues as a Such a con- desk Footnote further relevant “[t]he also, is, neglect. question judge possessed dones And such marked is whether the Part II ar- express contradiction to the terms of state Information at the time of thе serious, raignment.” contrary to This is SDCL 15-6- Filing of an information is a statute. 5(e) requires filing merely possess- which not procedure in the criminal law. It is eventful ing. a matter of vital substance — jurisdiction invoke the of a trial court Majority then claims “the had the proceed. dealing are not with a act —to during arraignment[.]” Information Re- nay, technicality; considering mere we are ally? very transcript quotations The indicate statutory necessity. he was unaware of it. The best answer was
that it was back on his desk where it was *8 placed by the State. ADDENDUM majority opinion Footnote 3 of the at- I take offense of the accusation that I have claims, tempts assumptions, thrust of the dis- no circumvent the invented facts. No that, effect, hardly logical necessary reflecting sent the dissen- inference was transcript quoted in only the true facts of read the the conference ter has a “claim” as to opinion. placing the Part II Information “on his [cir- judge’s] cuit court desk and the did not AMUNDSON, J., joins special writing
know it.” and I am authorized to so state. effect, In the footnote accuses this writer making up At facts. plainly trial tran- indicated
script quoted page of the conference
opinion, found it to ask if the Part