State v. Morse

marijuana and metham- where container The circum- located.

phetamine were this comment surrounding

stances conclude that officer

sufficient illicit admitting possessing

Bergee Beckett, See State in the vehicle.

items (Iowa Ct.App.1985) Hamilton,

(quoting State 1975)) (“Admissions (Iowa by-

325, 330 can be es- acquiescence

adoption or totality of circumstances by ‘the

tablished human behav- probable terms

viewed ”).

ior.’ our determination that Based on dog was irrele- reliability drug search, constitutionality of the

vant to the claim that Bergee’s discuss need not in de- its discretion trial court abused dog ex- drug for a

nying Bergee’s motion

pert. We affirm. GILBERTSON, Chief Justice KONENKAMP, SABERS,

ZINTER, Justices, concur. SD 66 Dakota, Plaintiff of South

STATE Appellee, Roy Fraley, MORSE,

Wyatt a/k/a Appellant.

Defendant and

No. Dakota.

Supreme Court of South 21, 2008. April on Briefs

Considered July

Decided Long, Attorney General,

Lawrence E. Knecht, Andrew Assistant Attorney Gen- eral, Pierre, Dakota, South Attorneys for plaintiff appellee. Whitcher,

Eric D. County Lawrence Public, Office, Deadwood, Defender’s home, them defendant Morse’s where showed Dakota, Attorneys for South he had restored. Janice and bathroom appellant. Morse also told impressed. Maxine were KONENKAMP, Justice. plumbing experience, that he had them that his would be above and work agreed convert Wyatt Morse [¶ 1.] code, inspector that the local did not room into a second-floor Heffron’s Janice inspect good. his work because he was so plumbing He said small bathroom. above and code work would be 2005, Janice, In Max- 4.] December [¶ in five complete project he could ine, agreement made an oral and Morse weeks, $5,000. for After ten weeks in project him to five complete quit Morse with- project was not finished. $5,000, in with cash payments weeks for paid in He had been explanation. out pay using Maxine wanted to installments. Afterwards, $6,000. Janice excess trail, paper checks to assure a but personal was of the work learned some pay cash. Morse convinced her with charged and convicted faulty. Morse was Janice, paid to be According wanted re- by deception. appeal, On of theft They agreed in cash avoid the IRS. evi- there was insufficient verse because a bath- Morse would convert room into infer that from a could dence (one room, antique an tub install claw-foot intent to defraud. Morse put provide personally), that he would walls, install an old tin

Background wainscoting on the bathroom, in ceiling like one purchased Heffron a home Janice [¶ 2.] molding. install crown Deadwood, It was listed in South Dakota. began January in work registry original- [¶ 5.] and was on the historical until the sec- re- 2006. His efforts continued planned on ly grandfather’s. her She repaired of March. He restoring the structure. ond week modeling and ceiling He installed Tre- kitchen and wall. hired Ricardo the fall of Janice repaired. in the area he also fixtures to work on exterior. Janice vino and in- old water heater floor con- He removed the a room on the second wanted freeze-proof a new one. He ran Trevino stalled a into a small bathroom. verted He a put the house. complete spigot outside likely that he could indicated cover. $10,000, antique vent $7,000 and bathroom vent with for between project cabinet He custom built a bathroom a formal bid. provide but he did not He mounted to the Heffrons. extra cost neigh- Wyatt Morse was Janice’s surrounding wainscoting and crafted Tre- come to her house while bor and had put He in faux rope lighting. with shelf working. Through discussions vino molding and trim. ceiling, with crown tin Janice, de- Morse learned about her and a new drain pipes He installed water He a second-floor bathroom. sire to have stack. the second-floor bed- proposed to convert longer and cost weeks for into a bathroom five room Janice, ran $5,000. originally agreed. than Morse more According attempted to in- remodeling into difficulties when he doing the “stalked” her about that Maxine water heater stating do stall tankless project, he could repeatedly Nonetheless, two weeks approximately aware took quick, cheap.” Janice was “easy, to install the mother, Heffron, He never able who effort. her Maxine told heater, installing a up and ended about Morse’s tankless project, would finance heater. Morse traditional tanked water then went offer. Maxine and Janice experienced problems with asserting also some of that the evidence was insufficient told pipes he installed. Janice him to sustain the verdict. leaking. repaired He them Standard of Review and blamed the leaks on bad batches of Our de novo standard of solder. on sufficiency review a claim is well estab paid Maxine Morse somewhere lished: $6,000 and cash. Her between last to be “[A]ll evidence is considered February payment was on Some light in the most favorable to the prose- cash, said, for “off contract” she Virginia, cution.” Jackson v. 443 U.S. part that were not of the con- materials 307, 319, 2781, 2789, 99 S.Ct. 61 L.Ed.2d 2006, price. March tract In Morse fell and (1979) (emphasis original). 560 in There aggravated already back. bad Before must be substantial support evidence to him, Janice and Maxine hired Morse had the conviction. Glasser United told them he a back condition. States, 60, 80, 457, 469, 315 U.S. 62 S.Ct. March, job After his fall in he came to the (1942), superseded 86 L.Ed. 680 on other Then, site less and less. after the second States, grounds, Bourjaily v. 483 United week in March he stopped coming entirely. 171, 2775, U.S. 97 S.Ct. L.Ed.2d 144 contacting The through Heffrons tried (1987). “inquiry require The calls, visits, phone personal and certified appellate] [an court to ‘ask itself wheth- responded. mail. He never er it believes the evidence the pro- 8.] After Morse the [¶ abandoned trial guilt established a reason- ” ject, plumber, Janice contacted a licensed Jackson, able doubt.’ 443 U.S. at 318- who gave examined Morse’s work and Jan- 19, 2789, 99 S.Ct. at 61 L.Ed.2d 560 ice an on of completing estimate the cost original) in (emphasis (quoting Woodby project. plumber pointed the The out sev- Immigration and Naturalization eral in In par- deficiencies Morse’s work. Serv., 276, 282, 385 U.S. 87 S.Ct. ticular, incorrectly Morse the installed wa- (1966)). “Instead, L.Ed.2d heater, sink, pipes ter for the lavatory, whether, the relevant question is after and bathtub. He S-traps, illegal used in viewing the evidence in the light most Dakota, South and improperly vented the prosecution, favorable to ration- floor drains. Because the wa- he installed al trier of fact could have found the incorrectly, ter heater carbon monoxide essential of elements the crime sum, In leaking into Janice’s home. reasonable is in- doubt.” Id. Evidence bathroom, Morse’s work on in sufficient, substantial, and therefore plumber, of opinion the licensed had no when rational trier fact of could find value the home. guilt beyond a reasonable doubt. Id. 12, 2006, 9.] On [¶ October Morse was 63, ¶37, Tofani, State v. 2006 SD grand indicted for deception theft in 22-30A-3(l) violation of SDCL and SDCL Analysis and Decision 22-30A-3(3), alternative, in grand by obtaining property pay- without argues ing. The alternative count was later dis- State prove requisite failed to he had the County jury missed. A Lawrence re- to defraud Heffrons. He does a guilty turned verdict. Morse not dispute admitted that the work he Jan did on to a Part II faulty Information and was sen- ice’s home was and resulted in the in years prison. appeals tenced five pay He having considerably Heffrons more ” be theft.’ Id. Model Nonetheless, that his convicted of he claims repairs. 3(b)). § cmt Penal Code 223.3 classic breach work created a faulty claim, when he entered contract Fyffe, Ohio the bath- to remodel agreement into the insufficient there ruled evi Appeals doing capable he room, he believed to convict defendant for know dence com- fully intended on work and quality i.e., depriving property, the victim of ingly State, on the project. pleting by deception, despite fact that money, hand, “created argues other money and did not defendant in the impression the false and reinforced N.E.2d perform. App.3d Ohio that he Maxine Heffron of Jan and minds (1990). Fyffe to do nu agreed of, to, installing capable was licensed Traugot repairs home for Dollie merous particular- More floor second bathroom.” completed After he thad. “de- that Morse ly, the State contends talked repairs, first set Dollie ability to do ceived” Heffrons work, agreed about some additional work, with his state- “misled” them and install a turn-around resurface code, be above that his work would ments driveway. the After Fyffe some the to further reinforce and “took actions work, Fyffe he left and never returned. prop- to impression that he was able grand obtaining was for theft for indicted erly the bathroom.”1 install by deception. At over from Dollie overcharged alleged Fyffe that

trial it was by is a deception Theft work, complete failed to some of for his Heftel, v. crime. 513 specific intent State work, and, to according the ex promised (S.D.1994) 397, (citing State v. N.W.2d 400 pert testimony, performed accept below (S.D.1989)). 16, Klein, In 19 N.W.2d 141. The trial Id. at able standards. “ willfully ‘means act tent to defraud by guilty decep found him of theft court the deceive or specific conviction, and with reversing the tion. In the cheat, purpose for the of either ordinarily [Fyffe] “[s]imply that because court ruled to another or causing financial loss some for his work than someone charged more gain financial to one’s bringing have, about some simply might [he] else ” DeWall, Id. State self.’ accordance complete did not work (S.D.1984)). 790, Therefore, does not expert’s] standards [the “purpose deprived had the de [Fyffe] knowingly must have prove that money by See or her de ceive.” of services [Dollie] “ (S.D.1993). Moreover, 918, ‘It is where at 141-42. ceiving her.” Id. [they] pur “[t]here not believe what the court concluded [actors do] believe, [Fyffe] victims] [Dollie] deceived posely [their caused evidence giving to her that was proved beyond misrepresenting can and where this be for price charged on the doubt, her a ‘deal’ actors] can [these reasonable created a false consider whether Morse that because Morse could 1. The State also asserts Despite appellate legally required have a li- impression as to law. neither, building permit, but cense had support an addi- belief that the facts counsel's as matters of "he deceived the Heffrons long theory guilt, held this Court has tional 22-30A-3(l). law,” The in violation of SDCL will issues for first that it not consider appeal. At State cannot make this claim on Co. v. appeal. on See Schull Constr. time trial, argued Morse de- the State never Koenig, 121 N.W.2d 80 S.D. of law. the Heffrons as to matters ceived (1963). Moreover, that it jury was not instructed work, that he never intended to do dant’s conviction for work, or that he would in a do work a pattern because he had of deceptive con- (Iowa 1998). manner and then did it in some duct. 588 N.W.2d 410-11 way.” anything, other Id. 142. If contractor, Rivers a self-employed concluded, court was a matter breach multiple jobs, who remodeling obtained of contract case. Id. money-as a payment, down persuaded give his customers to him money, more An Alabama court also reversed completed and then never the work. Ac- by decep- defendant’s conviction of theft court, cording to the sug- “[t]he evidence (Ala. State, tion. Smith v. 665 So.2d 1002 gests that when Rivers had milked the Cr.App.1995). court held that customer for as much appeared possi- as evidence was insufficient to show that the ble, up he never again.” showed Id. at to deprive defendant intended the victim State, Wyoming Craver gave money when the victim in return Supreme disagreed that Craver’s promise print seventy-two to screen failure to perform merely a civil mat- Although shirts. Id. at 1004. ter. P.2d (Wyo.1997). 1114-15 completed was never defendant court, According “Craver’s actions spent money personal needs, nonperformance” more than mere court stated that the defendant intended because he perform knew he could not perform at the time he obtained the mon- work and money took the deceiving after ey. If the defendant had his victims that he could. Id. at 1114. history conduct, type this the court upheld would have his conviction. Id. at Here, [¶ 16.] Morse was convict State, (citing Baker 588 So.2d by deception, ed defined in SDCL Further, 947 (Ala.Cr.App.1991)). the 22-30A-3. It states in part: court noted that “[a]n affirmance under [a]ny person who obtains property of presented the facts in this case would another guilty is of theft. to prosecutors serve cast in the role of person if, A deceives with intent to de- judgment encourage collectors and poten- fraud, that person: tial litigants civil to in remedy seek a a (1) Creates or a impres- reinforces false criminal court in the form of restitution.” sion, including impressions false as to Id. at 1004. law, value, intention, or other state of [¶ 15.] There are a number of cases However, mind. person’s a as to inten- involving construction contracts where tion perform to a promise, deception have courts found the evidence sufficient may not be inferred from the fact alone prove theft, to deceptive or related crimi- that that person did not subsequently cases, however, nal conduct. In those perform promise; the ... there was either circumstantial or direct (3) Fails to correct a false impression evidence to requisite establish the intent. previously which the deceiver created or States, example, For in Cash United reinforced, or which the deceiver knows appeals court that held the could infer be influencing to to another whom the intent when at time the Cash obtained the deceiver in fiduciary stands or confi- money he complete had no intention to the relationship; dential ... money work because the and never performed. term, deceive, 700 A.2d 1211-12 not, however, The Rivers, (D.C.Ct.App.1997). In falsity include having as to matters Supreme Iowa upheld pecuniary significance defen- or puffing by (8) responded never to Heffrons’ at- unlikely to deceive reason- statements to him.3 tempts contact persons. able added). we noted (emphasis These facts do not is section 22-30A-3 similar that SDCL deception. the elements of theft prove code, requiring Penal 223.3 of the Model that There no evidence Morse had purpose deceive. accused have must act accused deceive or intended to defraud purpose 920. intent willfully and with agreed to the Heffrons when he remodel at 400. Heftel, defraud. Although Janice’s bathroom. his work code, not and the State rec- was above our review the Based on ord, to the ver- light argued in a most favorable that Morse knew he would never (1) dict, complete failed to faulty Morse: and work.4 Janice Maxine both do prom- in five as project weeks up took them testified that Morse (2) ised; not performed work remodeling him the house and showed (3) promised; code” as “above They he did his own bathroom. both (4) building permit; obtaining a lied about It cannot be impressed. said were not he could lied about reasons inferred that Morse intended to defraud why water heater installed tankless product Heffrons because work (5) leaking; returned pipes Fyffe, not to code. See 588 N.E.2d up give water heater and $186 (substandard 141-42 work does re (6) Maxine;2 provided never refund defraud). sult inference for materials receipts or Maxine Janice Moreover, never (7) the State ar- on the quit working purchased; evidence that Morse explanation; gued presented prematurely and without made appellate 4.The dissent contends Apparently relying on the State’s services, of his brief, statements on value purchased the dissent claims that Morse scope “brought his statements within products credit card at Menards Maxine’s ¶ dissent, SDCL 22-30A-3.” See Nothing infra permission. rec- her without Morse, however, charged with was not de- asked, trial, supports ord this. At Janice was "value,” frauding to but rath- the Heffrons as being pur- [materials] were these "And how Quinn, er as to "intention.” In State responded, “Ei- at Menards?” She chased by deception reversed a conviction for theft my would a check or use ther mother write the evidence did not when we concluded that she, Maxine testified that her credit card.” charged. 2001 SD support conviction as Morse, "went to Menards and and Janice out ¶25, Although SDCL 623 N.W.2d needed, purchase what he we would make of by ways de- provides theft 22-30A-3 several and we used credit card.” Maxine established, the evidence must ception can be returning testify $186 from about the refund prosecu- charged. support crime "The as heater, Maxine water but neither tankless [Quinn] exclusively focused on tor in this case purchased ma- nor that Morse Janice claimed by misrepre- deception perpetrated credit cards without their terials with their senting allege the "count did not the law” and permission. instances, based on either fact or additional statute, by deception could be in which theft State, According to Morse also created Likewise, alleged proven.” here the State impression that was licensed the false to the Heffrons as inten- that Morse deceived testimony support plumber. The does only de- instructed on tion and the Therefore, testified that Morse this claim. Janice ception to like as intention. process getting Quinn, of told her he was in the whether facts we cannot consider Therefore, when support Janice was aware conviction un- license. would alternative theory as the dissent would that he was not licensed der an additional she hired Morse propose. plumber. 922 money permit

took Maxine’s with the intention of could not have deceived the Hef- parting money. into with more performing agreement. never under their frons Smith, at mon- (taking See 665 So.2d 1003 of [¶ 21.] The facts this case are ey performing previous and not without a analogous Fyffe, 588 N.E.2d at history of pattern that of conduct is insuffi- Smith, 1003-04, 665 at where each So.2d intent); Rivers, cient establish 588 that court held there was insufficient evi (pattern at con- deceptive N.W.2d 410 dence to sustain the conviction no duct can lead inference intent evidence that established the defendant defraud); Cash, but see 700 A.2d at 1211— possessed requisite Similarly, intent. inferred). (intent to defraud could be cases, past in this there Court’s was either parties agreement made their in De- direct evidence the defendant’s intent to that disputes cember one or the court defraud identified cir regularly project worked cumstantial evidence establishing January from 2006 until the second week property the time the obtained complete March. While Morse failed to requisite defendant acted intent. five weeks for as Phair, See State v. 2004 SD promised, the State never claimed that he (defendant knew her represen N.W.2d longer charge knew would take tations were false when she made them to more, and tricked Heffrons into believ- loans); Heftel, obtain 400- ing him. Neither Janice nor Maxine (circumstantial evidence established into claimed Morse deceived them defendant overpaid knew the bank him paying money more the project when money); when he took the Rivers, longer than anticipated. See (evidence N.W.2d at 921-22 existed Rather, N.W.2d at 411-12. Maxine they going defendants knew were not testified that “[hjaving had construction burn the waste when purposely made before, I knew it run going done Klein, they would); their victims believe money you really anticipate.... more than (defendant prior at 19 had two figured up So I right front when he said convictions for theft weeks, $5000, I thought, five oh this is were relevant motive and in establish $7000, going probably to run me $8000 crime). principal nonper tent Mere that bathroom done. And I think formance equal to defraud. why, money, that’s when he more I needed conviction, To sustain didn’t hesitate.” sup each element of an offense must be a keep ported by [¶ 20.] Morse refund Plenty evidence. See State v. $186 heater, Horse, returning 114, ¶¶8-9, after the tankless water SD rightly money, which was but by deception specific Maxine’s 766. Theft ais therefore, prove crime, this fact alone does not that Morse and the State was intended to defraud the required Heffrons when a prove reasonable agreed project. to do Morse also lied that doubt Morse had the intent to to Janice and Trevino in saying that he defraud the he agreed Heffrons when building had a permit. obtained Janice remodel the bathroom. Here the evidence testified, however, and Trevino that offered the State so “is insubstantial March, insufficient, place proba conversation took be- slight and and of such value, payment cause last Morse received tive that it is a proper not to make 28, 2006, February finding from Maxine was a reasonable that doubt representation building about committed all of the acts constitut- [Morse] deception iron the nature of offense[.]” See described elements ing the indication, know, you “I that as: N.E.2d at 141. Fyffe, 588 through.” (Emphasis wasn’t able follow Reversed. [¶ 23.] added). testimony Janice Heffron’s was discussing plumb- similar. After Morse’s MEIERHENRY, SABERS and [¶ 24.] ing representations, other she Justices, concur. meant asked what Morse’s statements ZINTER, Justice, concurs with [¶25.] responded her. she “inter- She writing. a to mean “that he pret[ed]” statements job.” if would do fabulous When asked GILBERTSON, Justice, Chief [¶ 26.] representations there were other dissents. made to induce to enter into her ZINTER, (concurring). contract, Justice indicated, “not I she can recollect.” notes, the Court the sole le- As [¶ 27.] all theory Upon matter was of trial testi- gal upon [¶ 29.] this review that, mony, agree at the time I with the Court that even submitted made, favorably viewing made fraud- most evidence the contract was verdict, not, support the evidence did representations to induce Heffrons ulent issue, law, support into as a matter of a rational to enter the contract. On theory of in the inducement of the reflects that trial did fraud record credibility conflicting disputes material disputes of contract. There were no involve credibility. fact testify, and the of or issues of evi- evidence. Morse did un- more than a civil simply argued nothing whether Morse’s dence reflected parties was, representations dispute involving and substandard a contractor who refuted reasons, variety competently intent in mak- unable work established fraudulent Thus, judgment motion for ing perform. the contract. the issue was Morse’s acquittal granted. should have been essentially undisputed histori- whether legal of fraud in cal facts met the elements (dissent- GILBERTSON, Chief Justice 22-30A-3(l) the inducement under SDCL ing). 22-30A-3(3). respectfully I dissent. Twelve the trial in- Although most of charged determining jurors were evidence—evidence volved circumstantial guilty of grand Morse was whether per- am upon which the dissent relies-—I 22-30A- violation of SDCL join the opinion suaded to 22-30A-3(3). 3(1) They con- and SDCL virtually all of that evidence relat- not a mere civil dis- cluded that this was conduct and evi- posi-inducement ed to over-expectant an home pute between substandard work that dence Morse’s under-achieving contractor. owner and Furthermore, performed. actually a crime. so They concluded was nothing other that evidence established doing, they spe- found that Morse had than Morse’s financial dis- incompetence, cific intent defraud. problems relating medical to his putes, retry not contract, This cases puffing. to finish the and Court ability Instead, the evidence Similarly, pre- de novo. we review direct evidence of jury’s to the light in in the most favorable representations, provided inducement ¶63, 35, testimony, nothing Tofani, 2006 SD also reflected verdict. State v. Heffrons’ 391, by trial, 400. In a similar theft puffing. Maxine Hef- 719 N.W.2d more than At case, we our deception set forth It is either above beyond standard and code or it is of review: not. accuracy The of such a claim can be empirically by determined

This turns on reference to the case this factual determi- plumbing undisputed code. Here it conflicting nation. is “Where evidence is code, case, Morse’s did present, in this and the work not meet and this as credibili- issue, ty of in it no witnesses is then it is a concedes “had value to the question jury. fact for home.”5 jury The physically present and, is at the trial [¶ To also “close the deal” therefore, position in the best judge further assured the Heffrons his work credibility the demeanor and of the wit- good so the local plumbing in- Shank, State 645, nesses.” 88 S.D. spector not inspect his work. Once 384, (1975). 226 N.W.2d again, not this is puffing. Whether the (S.D. State v. local plumbing inspector passed his work 1993). This standard of vitally review is without inspection because Morse’s self- important case, in a proclaimed expertise easily is ascertain- ever, rarely, if get will a defendant able. obviously This was another misstate- on the stand and announce that he or she ment of fact Morse made order to get “ had intent to defraud. ‘The job. In his brief Morse does not even proof of fraudulent intent need not be attempt to claim this statement was truth- direct; may be from expressly inferred ful. proven of the acts accused and surround- Moreover, there was no negotia- BJT, People ex rel. ing circumstances.”’ tion equals. many between Like home- 123, ¶10, 2005 SD owners, Heffrons had minimal knowledge Teutsch, State v. S.D. plumbing Specifically, field. (1964)). Thus, 126 N.W.2d it falls Heffrons did feel possessed suffi- upon the judge credibility knowledge cient about plumbing ques- the State’s any evidence and witnesses and tion self-professed plumbing Morse’s skills. brought by forth the defendant. just If 32.] Morse extolled The by statements were made general of his plumber virtues abilities as a Morse to “create ... impression a false this could advertising be excused as ... including impressions or as to ... He, however, puffing. did far more. [the] He value” his services. SDCL 22- 30A-3(1). made specific representations Thus, factual he was not convicted for induce the doing Heffrons hire him. He told substandard work completing Rather, Heffrons that his work job. would be above brought statements code. While is a there lot of within the scope of SDCL 22-30A-3. gray in claiming to be a “good” plumber, He false impressions created or even in repeatedly job. some telling $6,000 fact received between job victim will “easy, quick, be cheap,” for his “services” makes it a the same cannot be said for a claim “pecuniary that matter of significance” re- the work be quired will above by code. SDCL 22-30A-3.6 certificate, ing In his "[t]here brief admits improper no venting, bathroom tank, and, dispute expansion no water heater plumbing that some of the did not relief valve water on the heater. rigors meet code.” "rigors” Those Plumbing identified 6. Lest there be confusion as to whether Inspector plumb- Gerald Johnson included no the anything received Heffrons value for (9)He quit working project pre- the and surround- “acts ... Morse’s maturely and without notice or ex- got agree- an when he ing circumstances” and, planation; Heffrons, relevant to are from ment (10)He of fraudulent of the issue responded never to the Hef- determination ¶ 10, to contact him after attempts 2005 SD 123 frons’ intent. to to he failed return work. following acts While N.W.2d in- fraudulent directly constitute a do not juris- this depart need not [¶ 37.] We too in the rela- occurred late ducement or Court, interpreta- does the for diction as a fraud induce Heffrons tionship to be concerning tive case law State’s burden him, they strongly bolster hiring into proof to establish original that Morse’s jury’s conclusion to secure a conviction under defraud Klein, in- fraudulent In were made with statements 22-30A-3. SDCL (S.D.1989) upheld They tent. include: conviction of defendant who overstated (1) Heffron did not seek Janice personal property of his to ob- the value job. repeatedly He out do payment upon policy. tain insurance job getting her about hounded fraudu- difference is there between What it as point she described lently obtaining money by he saying one being “almost stalked.” destroyed property owns (2) paid to be cash He demanded not, plumb- by saying good he is such a Internal Revenue Ser-

defraud the above code and does er that his work is vice; inspection? not need raises The same defense Morse (3) sign con- a written He refused Hurst, rejected by this Court in only an oral tract and wanted the defendants con- 918. There agreement; waste. In- tracted to incinerate medical (4) building obtaining a He lied about stead, simply buried it. Their de- permit; did their actions not constitute fense was (5) Menards on purchased He items at merely a by deception, but were fraud credit card without the Heffrons’ interpreted We SDCL breach contract. permission; their require, where the “[i]t 22-30A-3 purposely believe what he actor did not (6) produce receipts He failed to believe, and where this caused his victim to despite the purchases doubt, proved a reasonable can be the Heffrons repeated requests of can be convicted theft.” actor so; to do Hurst, Model N.W.2d at 920 (7) he could He lied about reasons cmt.3(b)). Did § Penal Code 223.3 water heater the tankless work was truly believe why pipes installed good so above code leaking; in- did not bother to plumbing inspector (8) significant heater had a spect He returned water it? not. to conclude did give and did not amount of evidence

Menards $186 jury’s verdict Heffrons; upholding to the refund investment, actually a detriment to the expert "work" constituted witness testified their one "plumbing” have value home. Morse’s testified that Morse’s value and another 926 concluded, “[e]learly, this to in- to an acquittal failure tied because there was in-

cinerate waste was more than proof breach possessed sufficient to establish he of contract. purpose Defendants specific SpecificaEy defraud. deceive.” Id. 921. We also concluded upon Swalve tried to blame the acts “ is a a man pretense where ‘[i]t Here, sales staff. Morse worked alone represents himself in a to be situation had no and one but himself to blame his ” business in which he not.’ is upon. In acts Swalve we affirmed after Handke, 38, Kansas v. Kan. P.2d 185 840 applying appropriate standard of re- (1959)). 877, 883 that a jury’s view verdict not be will set Phair, 88, In “if State v. aside the state’s and all 2004 SD evidence favor- 660, 684 Phair was convicted able inferences that can be drawn there- failing for tell a support theory guilt.” from a rational lender that the title to her had an Swalve, ¶5, auto 2005 17 at SD 692 N.W.2d at it, unregistered lien upon allowing thus her 797. a loan on the vehicle. Phair chal- Thus, this Court should review lenged the sufficiency by of the evidence 22-30A-3(1) requirements of SDCL arguing that she specific had no intent to 22-30A-3(3) by applying our own in defraud in the loan transaction. She Moreover, terpretative law. ease such truthfully claimed that she all answered misrepresentations affirmative questions put by to her the lender and it obtain financial conspicuously benefit are her

was not fault that the lender failed to missing out-of-jurisdiction from the cases ascertain that an unrecorded lien existed. by upon cited this Court which it relies in We affirmed holding that there suffi- reversing Morse’s criminal conviction.7 jury cient evidence for the she conclude intentionally misrepresented the lien sta- researching [¶ 42.] When this Court’s failing tus of the If vehicle. to inform a opinions concerning sufficiency party my “I have a lien felony car” is pursuant evidence convictions to SDCL so, too, deception, telling a party “my is 22-30A-3 there ais consistent deference above good code so to the determination plumbing inspector inspect even are, determinations of fraudulent intent it.” nature, “factual,” Hurst, their 507 N.W.2d recently Most State 921, B.J.T., and “circumstantial.” 2005 Swalve, 17, 2005 SD N.W.2d 794 ¶ 10, 123 at SD 492. N.W.2d at That was charged defendant cars selling has, today, deference until given been without disclosing purchaser to the similar factual determinations.8 against had liens and charging them cus- tomers for extended warranties which he This also case involves factual provide. did not He claimed he enti- and circumstantial determination. This 608, Fyffe, App.3d In State v. 67 Ohio evidence defendant told homeowners he (1990) N.E.2d payments purchase use defendant would their down State, property give carpeting. told the owners would them In Smith v. So.2d Commonwealth, (Ala.Cr.App.1995) In promised “deal." Klink v. 12 Va. defendant (1991) App. produce t-shirts failed S.E.2d to do so. "[t]here was no evidence of false statements made to Quinn, induce the homeowner to enter into the con State 2001 SD 623 N.W.2d Tovar, tract.’’ 580 N.W.2d 768 upon stipulated a trial to the court based (Iowa 1998) the court concluded there was no facts. jury’s most verdict. why favorable articulate adequately fails to Tofa- ¶ ni, at 400. SD cases previous all the the deference taking a why new it is here apply reasons, I these respectfully For of its An examination direction.9 appellate dissent. gives the defendant shows opinion rather than factual doubt the benefit of review standard accepted our

applying evidence is all of the states light in the considered be

supposed to dissent. controversial. decisions were our

9. Nor Klein, Hurst, are without and Swalve Phair

Case Details

Case Name: State v. Morse

Court Name: South Dakota Supreme Court

Date Published: Jul 16, 2008

Citation: 753 N.W.2d 915

Docket Number: 24614

Court Abbreviation: S.D.