*1
Therefore,
coercion.
A.M.’s consent
sent, and deception this manner is not No. 25031. criminal under South Dakota law. His argument is flawed as this not a mere was Supreme Court of South Dakota. case of deception. Clearly, deception conduct, a factor in the underlying 26, but it May Considered on Briefs 2009. only was not the tactic Klaudt used to 19, Aug. Decided obtain A.M.’s consent.11 explained, As psychological evidence of coercion was sub-
stantial. Therefore, the trial court did denying not err in Klaudt’s motion for acquittal I, II, on counts and III.
[¶ 49.] Affirmed.
GILBERTSON,
Justice,
Chief
KONENKAMP, ZINTER,
MEIERHENRY, Justices, concur.
psychological
(N.Y.Dist.Ct.1994) (defendant
The substantial evidence of
tricked twin
coercion differentiates
girlfriend
him);
this case from cases
having
brother's
into
sex with
where,
jurisdictions
decided in
like South Da
Goldenberg,
Commonwealth v.
338 Mass.
kota,
use
(1959),
denied,
to obtain consent to
Lawrence E. Long, Attorney Blair, R. Attorney Steven Assistant Gener- al, Pierre, Dakota, Attorneys South plaintiff appellee. and Castro, Manuel J. de Jr. of de Castro Offices, PLLC, Madison, Law South Dako- ta, Attorney for appellant. defendant and KONENKAMP, Justice. guilty A found defendant
aggravated grand by appeals. he Because there was insufficient evidence that defendant intended to de- ceive his at the time victims he entered accepted into a loan proceeds, we reverse.
Background met
[¶ 2.] Defendant Jerome Kessler
Eugene
Sharon and
Hemmer sometime
handing
while
out fli-
defendant
advertising his construction
ers
business.
The Hemmers hired
to do
work,
handyman
throughout
the next
year,
completed
projects
two
for them.
The Hemmers were satisfied with defen-
him.
In
paid
dant’s efforts and
other difference was the absence of an
defendant,
again
Hemmers
hired
attached
anticipated
schedule of
draws and
Nonetheless,
him for the
completed.
work he
the fall
interest.
as with the first
defendant told the Hemmers that
agreement, defendant
periodic
*3
he had
legal
incurred some
bills and want-
on
draws
the loan from the Hemmers.
if
money
ed to know he could borrow
in Noted on some of the checks were the
exchange
doing
They
for
work.
loaned words “loan” or “draw.” Sharon Hemmer
$3,500.
him
Defendant
repaid
always
never
the was not
present when defendant
completed
repairs
but
certain
in the
received the draws. The last four times
summer of 2007 without requesting pay-
requested money,
defendant
Gene
ex-
was
ment.
tremely ill
signed
and Sharon
defendant’s
requested
Sharon,
According
draws.
2006,
Also in the fall of
defendant
draw,
when defendant
request
would
she
they
asked the
if
Hemmers
would finance
or Gene would ask how the house was
his construction of a “spec house.” De-
coming.
usually
Defendant would
respond,
fendant did not believe he could obtain
going
“The house is
well.”
financing through a bank. He proposed
they
amount,
him
6,
would loan
a certain
2008,
On February
defendant
which he
would later
with interest. met with the
meeting
Hemmers. The
was
The
agreed,
parties
Hemmers
en-
in part
held
discuss
contract for deed
tered into a contract and
agree-
escrow
arrangement between the
At
parties.2
provided
ment. The contract
meeting,
requested
defen-
defendant
a draw of
$35,000
dant
periodic
would take
draws for a total
for the
Brookings
second
home.
to build a
in Brookings
Sharon,
house
According to
Gene asked defen-
County,
Upon
South Dakota.
sale of
if
dant
he was
finishing
inside the house
house,
he would
up,
Hemmers
to which
responded,
defendant
‘Tes.”
$169,000, plus 10% interest. The contract The Hemmers were concerned about the
contained an attached document setting
money
amount of
already
defendant had
forth the schedule of draws and interest.
drawn and
him
asked
how much he had
Throughout
the remainder of
and received.
responded
Defendant
that he
into the summer of
defendant took
already
had
approximately
drawn
$220,000.
draws
accord with the contract and con-
The Hemmers
give
refused to
July
structed
home.
$35,000.
defen-
defendant
requested
his
repaid
$177,260.83
dant
the Hemmers
day,
next
Sharon went
interest).
($169,000,plus 10%
Brookings to check on
progress
of the
in May
[¶ 4.] Sometime
it,
Gene house. When she saw she was shocked
Hemmer agreed
roof,
to finance
“spec
windows,
another
that it had no
no
ap-
house” for defendant to build in Brookings
peared to her
just
to be a house
beginning
County. They executed a second contract
construction. Sharon contacted defendant
first,
substantially similar to the
dated Au-
attorney,
and her
David Jencks. That
gust
One difference was an in-
evening, February
defendant met
$199,990.
crease in the loan amount:
An- with the Hemmers and Jencks at
"spec
time,
1. A
house” is built for sale with
no
At the
living
defendant had been
at a
specific purchaser
acreage
residence on the
Jutting
mind. See
Hemmers’
outside of
Hendrix,
¶25,
living
Wentworth.
was
Defendant
there as
3 n.
part
of an
buy
that he would
140 n. 2.
acreage through a contract for deed.
poor management
defendant
Hemmers’ home. Sharon asked
and anxi-
gone,
account for where the
ety problems.
responded that he had no
to which he
stopped
[¶ 9.] The Hemmers
accounting.
written
Defendant admitted
working
from
on the house and
it
sold
spent
things
that the
other
$99,000. Defendant
aggra
was indicted of
house. He
than the construction
grand
vated
violation
also admitted that he had lied to the Hem-
22-30A-3(1).3
of SDCL
Under
22-
SDCL
house,
mers on the
con-
30A-17.1,
aggravated grand
“Theft
upset.
cerned that the Hemmers would be
theft, if
the value of the
stolen
Nonetheless, at all times defendant
re-
*4
exceeds one hundred
A
thousand dollars.”
peated
complete
that he intended to
jury trial was held in October 2008. De
gave no indication that he
construction and
fendant was found guilty. He was sen
repaying
did not intend on
the loan.
years imprisonment,
tenced to ten
with
8, 2008,
February
On
defendant
[¶ 7.]
suspended,
seven
on the conditions that he
accounting,
the Hemmers a
gave
written
plus attorney’s
restitution
fees and
which showed that
he had
drawn
have no contact with the Hemmers. De
$198,681.66
accounting
for the house. The
appeals asserting
fendant
that
the court
$72,746
only
to con-
indicated that
went
erred
it denied his
when
motion for a
struction, while the rest
to other
went
judgment
acquittal
based on the State’s
items, including
personal
defendant’s
obli-
(1) prove
failure to
venue under SDCL
gations, e.g.,
support.
child
Defendant
(2)
23A-16-3,
identification,
establish
told the Hemmers that he needed another
(3) set forth sufficient evidence.
$103,828to finish the house. The Hemmers
Analysis and Decision
give
any
refused to
more mon-
ey,
accounting
since their own
revealed
Our review of a
denial
$216,000.
that defendant
drawn
judgment
a motion for a
a
acquittal is
question of law examined de novo. State
Despite
receiving any
addi-
¶
Packed,
75, 17,
v.
2007 SD
736 N.W.2d
money,
February
tional
between
8 and
851,
Disanto,
(quoting
State v.
14,
February
defendant continued to work
112, 14,
(citing
SD
688 N.W.2d
meantime, however,
on the
In the
house.
Staula,
United States v.
80 F.3d
attorney
County
Lake
Jencks contacted
(1st Cir.1996))). “We must decide anew
Deputy
Walburg.
Tim
Jencks re-
Sheriff
whether the evidence was sufficient to sus
ported that defendant had stolen over
Disanto,
tain a conviction.”
Deputy
from the Hemmers.
omitted).
(citations
14,
we defendant was not intent to defraud “ paid any money ‘means to act willfully and with based spe cheat, cific intent to deceive or certain ordinarily construction work. He *5 purpose of either causing some money contract, was loaned under a loan financial loss to bringing another or about money, interest, plus was due re some gain financial to one’s self.’ 2008 SD gardless of defendant’s completion of the ¶66, 12, (citation at 919 N.W.2d omit construction work. That this situation in ted). contract, volved a loan rather than monies paid promise based on a perform to certain
[¶
This case is not comparable
12.]
to
work,
construction
is further evident based
cases,
Morse or Jackson.
In those
on the fact that
money
defendants obtained
Hemmers’ loan to
from another
based on a
defendant was
to
secured to a certain
certain
extent
construction
by
work. The
the real
was
estate the
being
home was
to Morse and Jackson with no expectation
constructed on.4
pur-
When defendant
equally
lien,
4. This situation is
dissimilar to the
"disclose a known
adverse claim or oth-
Phair,
decision in State v.
legal impediment
SD
er
enjoyment
to
prop-
of
upon
N.W.2d
relied
erty”
22-30A-3(4),
in Justice Zinter’s
under SDCL
because re-
charged
dissent.
by
Phair was
gardless
with theft
de
repay,
of the intent to
Phair made
ception for her failure
improper
to "disclose a known
disclosure at the time the loan
lien,
legal impediment
Here,
adverse claim or other
parties'
was obtained.
contract
enjoyment
property....”
provided
of
See id.
that the Hemmers would loan defen-
22-30A-3(4)).
(quoting SDCL
Defendant
dant
repay
and defendant would
under
charged
by
with
in
agreement.
the terms of the
There is no
"[c]reat[ing]
reinforce[ing]
impres
or
a false
evidence that defendant intended not to fulfill
sion,
law,
including
impressions
false
obligation
as to
repay.
to
This lack of
value, intention, or other state of mind[J”
unlike the evidence that
the defendant
22-30A-3(1).
See SDCL
Phair's decision
repay,
important
Phair intended to
is
"
impediment
disclose a known
to her lender
of the fact that an intent to defraud
'means
deciding
is irrelevant to
willfully
whether there is
specific
suffi
to act
and with the
intent to
cheat,
cient evidence to convict a defendant for cre
deceive
ordinarily
purpose
or
for the
of
ating
reinforcing
impressions
causing
with the
either
some financial loss to another
Phair,
intent to defraud.
In
bringing
the Court exam
gain
about some financial
to one’s
Morse,
acceptable
66, ¶
ined
whether it was
to exclude
self.”' See
repay
(citations
evidence of
omitted).
Phair's intent to
the loan.
N.W.2d at 919
There is
Properly, the Court concluded that evidence
no evidence that defendant intended to cause
of
repay
an intent to
did
not save a
gain
financial loss to the Hemmers or a
defendant from conviction for a
Regardless
failure to
himself.
of his use of the loan
land,
it was titled
the name
financial
to another or bring
chased
loss
about
gain
the Hemmers’ trust.
some financial
of
himself.
¶66, 12,
(cita-
the Hemmers existed wheth- no evidence that at the time defendant construction on the home. completed er he obtained the draws or when he entered building the house for his own He was contract, into the loan he did so with the profit The Hemmers’ would come profit. pattern intent to defraud. There is no from the interest defendant would conduct on part entering defendant’s the loan. There was no date in into a loan absconding by the contract which defendant was re- Rather, money.5 the evidence shows im- quired Hemmers. Most that defendant entered into an agreement however, portantly, there was no claim similar to the one made earlier with the the Hemmers that at the time defendant Hemmers that was successfully completed. any of the advances he had no repaying intent on them under the terms Essentially, argues the State fact, parties’ loan contract. un- that because proceed defendant failed to contract, der the from the dates of each with the construction of the in a house draw, the Hemmers accrued 10% interest timely spent part fashion and of the loan obligation, on defendant’s loan which inter- proceeds on items not related to the con- est would continue to until defen- accrue house, struction of the defendant stole repaid dant Hemmers. from the Hemmers deception.6 A crucial by deception element of theft Theft is a *6 evidence, missing, however. There is no specific requires proof intent crime that nothing by which can that defendant obtained with the this Court infer intent to defraud. SDCL 22-30A-3. such that defendant entered into There must be evidence that defendant the loan or obtained the loan “willfully proceeds acted and with the intent “with the intent to defraud[.]”7 cheat[,]” to deceive or to either cause some See SDCL 22-30A-3. proceeds personal expense, complete for defendant re- to certain construction work obligated repay get completed promised. mained to on the loan and and it did not Here, there is no that he did not promise complete evidence intend on defendant did not to fulfilling obligation. Brookings construction of the home a cer- time, agree tain amount of or to construct the 5. Both dissents contend that there is evi- Therefore, per home Hemmers’ desires. dence aof common scheme defendant to purpose while the loan was for the of con- support finding guilty defendant of theft house,” structing "spec other construc- deception in this case. These claims miss the experiences pro- tion-related with defendant previous mark because the situations in proof vided no that defendant did not intend which defendant obtained did not in- repaying the Hemmers under the terms of agreements. volve construction loan In those agreement. the loan instances, paid money, defendant was with expectation repayment, no based on his 7.Although Justice Zinter’s dissent is correct complete to certain work. See infra falsely represented defendant status note 6. of the house in order to obtain additional parties' advances of the con- under terms
6. The State called witnesses who testified tract, representations projects these false alone do about construction defendant failed despite being paid. to establish that the time he obtained Those in- agreements stances did not involve loan draws he intended to defraud the Hemmers parties’ agreement. defendant. those cases defendant was under the terms of the amount, recognize that at times to the full loan We the Hemmers for
[¶ 17.] obtained under the plus when defendant 10% interest.8 The statute under agreement, loan he lied to the Hemmers charged which defendant was does not house, progress on the about criminalize defaulted loans. may have “[c]reate[d] reinforce[d] being sup- There no [¶ 19.] law, value, intention, impression as to port proof that entered into 22- or other state of mind.” See SDCL proceeds, loan loan agreement, 30A-3(1). Yet, im- creation these false Hemmers, with the defraud the pressions about the on the house there is insufficient evidence sustain way requisite supplanted proof no of defendant’s conviction. Because the con- the “intent to defraud” element. There is stand, viction cannot we need not consider no evidence that at the time defendant proved whether the State venue or estab- obtained the draws from the Hemmers lished identification. believing that he deceived them into [¶ 20.] Reversed.
would when in fact he had Moreover, no such intent. while the loan MEIERHENRY and [¶ 21.] “pay contract states defendant is to SEVERSON, Justices, concur. from all proceeds such material and labor used in the construction of such GILBERTSON, Chief Justice house[,]” this clause is not exclusive. ZINTER, Justice, dissent. reading A careful (dissent- GILBERTSON, Chief Justice parties’ Construction Loan and Escrow ing). Agreement promise by reveals no defen I respectfully dissent for the apply proceeds dant all loan reasons stated in State Indeed, “spec construction of the house.” ¶¶ 30-44, (Gil 753 N.W.2d 923-27 at the time defendant obtained the loan bertson, C.J., dissenting), and State v. debt, proceeds, he obtained additional Jackson, 29-34, had a consequent obligation it. *7 (Gilbertson, C.J., 548-550 dissenting). There is no evidence that at the time he received loan proceeds retry the he intended to This Court does not cases de novo. Instead, deprive money. the Hemmers of their As we review the evidence in the states, the contract “all monies lent jury’s most favorable to the ver- Hemmers” to defendant under the con dict. In a similar theft case, tract were in repaid plus to be full 10% we set forth our standard of re- Thus, regardless interest. of defendant’s ... conflicting view. Where evidence is case, present, on the house or where he in spent and the credibili- proceeds, issue, the loan ty defendant was indebted of in witnesses is then it is a Contrary No evidence was offered that defendant did to Justice Zinter’s claim that it can be inferred repaying not intend on from defendant’s failure to com- under the terms of the plete project that he had the intent loan. The dissent’s on the other defraud, improper such inference would be hand, in supports the view that defendant failed parties' this case. The contract does not re- comply parties' terms of the con- quire completion by a certain date and there tract, i.e., expending of funds for labor is no evidence that defendant obtained the expenses. comply Defendant's failure to advances from the Hemmers based on terms, however, with the contract ais breach complete the house within a cer- contract, by deception. not theft tain time. jury. jury fact for the The question of must not have intended to defraud the and, at trial physically present agreed Hemmers when he to build the therefore, However, in second position judge the best home. this is not a nec- conclusion; essary credibility the demeanor and of the wit Kessler per- could have formed some of This standard of review is vital the work on nesses. the second home, and intended ly in a to defraud the important Hem- case, jury mers. The rarely, ever, if found that he did in- because will a de so tend. get fendant on the stand and announce specific
that he or she had the intent to jury [¶ The 26.] heard evidence that proof defraud. “The in of fraudulent previous Kessler had a number of con- direct; tent need not be it may be in struction projects where he had failed to expressly proven acts ferred from complete project, and from which he surrounding accused circum significant money received amounts of BJT, People stances.” ex rel. personal for his financial interests. These 123, 10, (quoting N.W.2d projects other established a common Teutsch, 462, 466, State 80 S.D. 126 scheme for Kessler to enter into construc- (1964)). 112, 115 N.W.2d projects, tion money receive over period time, delays claim need for N.W.2d (citations omitted) money, spend additional money on per- 923-24 (emphasis add- ed). sonal expenses, only debts and partially work, complete the away then walk from Jackson, 24 As in [¶ .] Morse project unfinished leaving the other jury’s ability Court eschews the to consid party the lurch. credibility er the demeanor and witnesses and to draw conclusions about example, [¶ For 27.] Kessler the defendant’s state of mind and entered into a home construction Omaha, sup intent from the evidence. The Court Nebraska. After Kessler received plants jury’s conclusions with its own for the construction materi- by re-weighing labor, improper evidence and als and placed numerous liens were ly disregarding put before the against by lumberyards the home and sub- jury. using contractors. Rather than the ad- construction, vanced to pay for the reasonably [¶ 25.] The could have Kessler had used some of the inferred from the evidence that Kessler purposes. outstanding his own liens did not intend to ever pro- $104,000. approximately totaled Eventual- ject, sought but instead to take draws from *8 ly, $41,000 signed promissory Kessler a personal the Hemmers for his financial repayment note to the homeowner for gain. heavily While the Court relies on only monies advanced to him. Kessler had self-serving Kessler’s statements that he $1,100 note, against promissory always intended to the second signed by the time of the instant home, jury proper judge is the of his trial, October 2008. credibility. jury disregard The was free to his stated intent and instead that infer he The Court’s statement that [¶ 28.] planned dupe had to pattern Hemmers from “There is no of conduct on defen- beginning. appears The to a part entering agree- Court rea- dant’s into loan simply son that per- money” because Kessler had ment and absconding with the is ¶ construction, formed some of the misleading. supra or be- See it is While home, completed cause he the first true that the Omaha did not tech- “loan,” Hemmers, nically involve a it was a similar where near complete. The enough “agreement” jury’s to quite reasonably, warrant refused to “loan” anoth- $35,000 conclusion that this was Kessler’s scheme er to Kessler. The evidence deceiving the Hemmers. showed that provided Kessler never an accounting of spending to the Hem- attempts The Court to distin they mers until had visited the con- after guish legal consequence of Kessler’s struction site and him any refused to loan “duty repay” contractual to the loan to the money. By more his own accounting, of Hemmers from “duty the contractual to $198,681.66 borrowed, Kessler had perform present services” in Morse and $72,746 only went toward construction ex- 12-14, supra Jackson. See 16 n. 3. $126,000 penses. remaining The went to- This should be a distinction without a dif personal expenses. ward his Kessler ad- 22-30A-3(l) ference; under SDCL we are mitted that he had no other source of promissor’s concerned with the specific in income; he had no repay- means of either tent to obtain of another de ing finishing the loan or the home. ception, regardless of whether that decep accomplished by tion is promise [¶ 31.] Given this and the evi or a false perform. The schemes, dence of previous appears suggest Court that if one bor reasonably that, could have inferred specific rows with no repayment at the time agree Kessler entered into the date, “obligation repay” ment in August he did not intend to precludes any liability, criminal irrespec repay the loan deposit but to it into a bank tive of the borrower’s intent never to re spend account and it all within two pay. supra See 14. This is an invalid months. He then fagade, continued the disregarding basis for the State’s evidence. seeking get more from the Hem ¶ 16, Furthermore, supra See n. 3. Kes mers, they until actually visited the work- sler not appealed has from the circuit site and deception. discovered his These evidence; court’s admission of this unreasonable, inferences are neither nor Court makes this argument sponte. sua they are “inferred from the fact alone that The Court’s disregard of this evidence sim did not subsequently perform [Kessler] ply reflects its effort jury’s to override the 22-30A-3(1) (em promise.” See SDCL retry decision and the evidence. added). phasis transaction, In the instant The correctly Court states Construction Loan Agreement and Escrow “The statute under which defendant was for the second home signed August charged does not criminalize defaulted 2007. This provided up to However, loans.” See while $199,900 to Kessler from the Hemmers. true, this statement it misses the more Kessler received approximately point; salient the statute does criminalize agreement by early under this October entering into a loan with the 2007. The bank account where Kessler to default on it. That is what Kessler was deposited was overdrawn jury. convicted of jury’s ver- *9 by October 2007. Because he had not upheld dict should be required by our used money home, to build the second standard of review. The circuit court did he was project. unable to In not err in denying Kessler’s motion for a fact, Kessler asked for an additional judgment of acquittal. $35,000from day the Hemmers the before they discovered that the house was no- I dissent. join I also the dissent of Justice majority correctly 34.] [¶ 36.] The
[¶ observes “that there must be purpose Zinter. evidence of a
to deceive or an intent to defraud at the property time the or is obtained.” ZINTER, (dissenting). Justice ¶ added) Supra 11 (emphasis (citing State reverses, majority finding [¶ 35.] The 66, ¶ 12, 753 N.W.2d no evidence of with intent to 915, 919; Jackson, State v. ¶
defraud because this case a loan 541). involved case, In this Kes- and there was no evidence “at the time sler in the form of checks (loan advances) obtained the [Kessler] draws when he from the Hemmers on four the loan” that occasions when there dispute entered into he “had no is no misrepresentations. made The first intent under [to Hemmers] those September occasions was on parties’ terms of the loan contract.” See and the last on November 2007. 14-15, majority 17. The errs in: aggregate amount obtained was (1) (2) review; misapplying our standard of $105,000. failing history to consider Kessler’s of sim-
ilar
misrepresentations
schemes and the
Because that money
was ad-
he made to obtain loan advances that he
house,
vanced for construction of the
could not
deceiving
have received without
each of these occasions Sharon Hemmer
(3)
and,
Hemmers;
misapplying the law inquired about the status of the house.
regarding
defraud
loan trans-
falsely responded
Kessler
that “the house
concededly
actions. Kessler
made misrep-
doing
well.” In his last unsuccessful
attempt
advance,
resentations to obtain four
that
advances
obtain an
Kessler
falsely
represented
were
that construction
restricted
to be
proceeded
point
to the
that he
purpose
used “for
was “inside
purchasing
such
finishing
the house
up.” Supra
5.
constructing
lot and
such house.”9 When
is, however,
There
no dispute
only
misrepresentations
are considered with
framing
limited
had been completed, the
history
legal
under the correct
windows,
roof,
house had no
no
it
standards, a
rational
could have found
only
appeared
beginning stage
be
that he obtained
from
Hem-
Thus,
Supra
of construction.
by deception.
mers
Because “[a]mounts
majority properly concedes that Kessler
thefts,
involved
whether from the same
“lied
Hemmers about the
person or
persons,
pur-
several
committed
house,
may
on the
which
have ‘[c]reated or
conduct,
suant
one scheme or course of
impression
a false
reinforce[d]
as to the
may
aggregated
determining
be
the de-
law, value,
intention, or other state of
offense,”
22-30A-18,
gree of the
SDCL
Supra
mind.’
aggravated grand
and because
“[t]heft
theft, if
the value of the
stolen
Further,
dispute
there is no
dollars,”
exceeds one hundred thousand
Kessler had no
finish
22-30A-17.1,
SDCL
I
would affirm the
and that he used the
circuit court.
personal purposes
advances for
unrelated
Agree-
9. The Construction Loan and
respect
Escrow
deceived the Hemmers with
to this
ment,
advances,
advances,
governed
obtaining
further
condition.
he did
provided
using
that Kessler
towas
from the
not disclose that he was
substantial loan
proceeds
purposes
pur-
advances "all materials and labor used in the
unrelated to the
construction of such house.” Kessler also
chase of materials and labor for the house.
*10
Moreover,
house.
there was evi-
can infer such
(involving
agreement
a
entered into the loan
or ob-
dence of
common scheme
proceeds
tained the loan
‘with the intent to
projects)
three other
in which Kessler
¶
majority’s
In
Supra
defraud.’
the
would obtain
for other construction
view, there must be evidence that Kessler
projects,
personal
but divert the
loan; and,
repay
never intended to
project.
use and fail to
See
history
prior
¶¶
neither Kessler’s
of
similar
(Gilbertson, C.J.,
supra
26-28
dissent-
contemporaneous misrep-
schemes nor his
Rivers,
ing).
See also Iowa
resentations made to obtain advances on
(Iowa 1998) (concluding
there was suf-
the loan are relevant under
22-
SDCL
prior history
ficient evidence in
of
of
30A-3(1) because Kessler was still re-
obtaining payments
completing
without
quired
a
repay
partially
secured loan
State,
project); Baker v.
M3
funds are
by
where loan
ers the
fense]
value of the transaction due to
pretense irrespective
false
of the defen-
the lender’s lack of
perti-
information
repay
repayment
dants intent to
or actual
nent to the accurate assessment of the
Id.,
Lewis,
(citing
of the loan.”
9
v.
Com.
risk it faces
propriety
of extend-
Mass.App.Ct.
720 N.E.2d
ing credit
particular individual,
to that
(1999))
added).
(emphasis
n. 3
The lan-
and because of the
expense
increased
by
guage
adopted
we
our reference to
difficulty
any
and
necessary bill col-
applied
Lewis
to the broad common-law
lection efforts. Because this intent
is
larceny by
offense of
pretenses,”
“false
sufficient, it is irrelevant whether
all
22-
aspects
underlies
of SDCL
good
borrower intended in
repay
faith to
unequivocally provides:
30A-3 and
the loan.
loan,
Although
couched
the form of a
Phair,
88, 10,
[Sufficient be considered evidence of intent to deceive found from the intentional withholding supra *12 144 motions,
ings
acquittal
[including
a case
failure to follow South Dakota law on the
necessary
which false statements
made to nature of the
pro-
were
advances],
obtain loan
this Court does not
proof
vide
of intent
to defraud in loan
transactions,
appel-
look to
evidence favorable
majority’s
failure to
Phair,
88,
16,
lant.”
684 give
jury
verdict
the deference to
Therefore,
majority’s
entitled,
N.W.2d
665.
provide
unprece-
which it is
an
possible
improperly
rationalizations
re-
dented form of criminal insulation to those
weigh
give
the evidence and fail to
misrepresentations
who utilize
to obtain
verdict the deferential inference to which
proscription
loan advances. The
in SDCL
Frazier,
it is entitled.
22-30A-3(l)
See State v.
2001
bench,
is not so limited. The
¶19, 44,
SD
N.W.2d
261. As we
Legislature
bar and
will be surprised to
have often stated: “In measuring eviden-
that,
majority’s
learn
following
analy-
tiary sufficiency,
‘whether,
[only]
we
ask
sis,
long
so
a
is made
viewing
after
the evidence
intent,
subsequent
innocent
deceit re-
prosecution, any
(the
most favorable to the
ra-
garding existing facts
status and value
tional trier of fact
collateral)
could have found the
employed to obtain unau-
beyond
essential elements of the crime
subject
thorized loan
advances is
Disanto,
reasonable doubt.’ State v.
join
I
statute.
cannot
SD
(quoting
N.W.2d
premise.
that erroneous
Virginia,
Jackson v.
443 U.S.
concededly
[¶ 44.] Because Kessler
lied
(1979)).
S.Ct.
the time of the his lies to obtain advances, and his failure to finish the advances,11 the evi- dence was inferentially sufficient to sug- gest he had the intent to “deceive
or cheat” at the time he
misrep-
made the
resentations to obtain those four advances.