932 N.W.2d 141 (S.D. 2019), 28703-a-DG, State v. Podzimek

Docket Nº:28703-a-DG
Citation:932 N.W.2d 141, 2019 S.D. 43
Opinion Judge:GILBERTSON, Chief Justice
Party Name:STATE of South Dakota, Plaintiff and Appellee, v. Gary J. PODZIMEK, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG, Attorney General, PHILIP D. CARLSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee. CHRIS A. NIPE of Larson & Nipe, Mitchell, South Dakota, Attorneys for defendant and appellant.
Judge Panel:KERN, JENSEN and SALTER, Justices, concur. MEIERHENRY, Retired Justice, concurs in part and concurs in result in part.
Case Date:July 17, 2019
Court:Supreme Court of South Dakota

Page 141

932 N.W.2d 141 (S.D. 2019)

2019 S.D. 43

STATE of South Dakota, Plaintiff and Appellee,

v.

Gary J. PODZIMEK, Defendant and Appellant.

No. 28703-a-DG

Supreme Court of South Dakota

July 17, 2019

CONSIDERED ON BRIEFS ON MAY 28, 2019

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[Copyrighted Material Omitted]

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APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, DAY COUNTY, SOUTH DAKOTA, THE HONORABLE JON S. FLEMMER, Judge

JASON R. RAVNSBORG, Attorney General, PHILIP D. CARLSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

CHRIS A. NIPE of Larson & Nipe, Mitchell, South Dakota, Attorneys for defendant and appellant.

OPINION

GILBERTSON, Chief Justice

[¶1] Gary Podzimek appeals his convictions and sentences for grand theft by deception, attempted grand theft by deception, deceptive act or practice, three counts of failure to pay sales tax, and four counts of making a false or fraudulent tax return. The convictions stem from Podzimek’s excessive billing of Don Martin, now deceased, for mechanic work done to Martin’s pickup. On appeal, Podzimek contends that the circuit court erred by: (1) admitting certain statements made by Martin to a state investigator; (2) admitting Podzimek’s bank records; and (3) denying Podzimek’s post-trial motion to set aside his guilty verdicts.

Facts and Procedural History

[¶2] Podzimek was an auto mechanic who operated in Bristol, South Dakota. Martin, a retired farmer, was one of Podzimek’s

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customers. Martin owned a 1976 Chevy half-ton, four-wheel-drive pickup, which he occasionally brought to Podzimek for repairs. Martin first brought his pickup to Podzimek at Horter’s Repair and Restoration in Bristol. When Podzimek was terminated from Horter’s in 2014, Martin continued to service his pickup at Horter’s.

[¶3] On April 17, 2015, Martin took his pickup to Horter’s for an oil change and vehicle inspection. Eric Garrett, a mechanic at Horter’s since 2014, performed the oil change and inspection. During the inspection, Garrett noticed nothing wrong with the vehicle. He did not detect any leaks or other mechanical issues and observed that the pickup was in particularly good condition for its age.

[¶4] About a week and a half later, Martin drove his pickup to Podzimek’s new repair shop in Bristol, which Podzimek owned and operated with his wife Brenda, to speak with Podzimek. After Martin left Podzimek’s shop, Podzimek called Martin to report that he noticed Martin’s pickup was making strange noises and leaking coolant. Podzimek offered to inspect the vehicle. Upon inspection, Podzimek told Martin that the vehicle needed its engine rebuilt or a new engine entirely. Martin left his pickup with Podzimek, who began repairs. Podzimek worked on the vehicle from August of 2015 until April of 2016— and claimed to have fixed a variety of issues. During that period, Martin wrote Podzimek eight different checks for the repairs, totaling $52,595.85. Martin’s pickup was valued at only around $6,000.

[¶5] Martin sought to borrow money from Dacotah Bank in Webster, South Dakota to cover the last two checks written to Podzimek, totaling $12,795.85. Bank President Dan Menking testified that he was "bothered" by the fact that Martin would have to borrow that amount of money considering Martin’s finances. This lead Menking to review Martin’s bank account. Menking discovered that Martin had already paid Podzimek $39,800 for repairs. Suspecting that Podzimek’s charges were fraudulent, Menking met with Martin and the local Sheriff. After the meeting, Martin stopped payment on the last two checks issued to Podzimek. Later on, Podzimek called Menking and asked him to lend Martin the money to pay for the remaining repair charges by using some land owned by Martin as collateral.

[¶6] Thereafter, Martin filed a complaint against Podzimek with the South Dakota Attorney General’s Office, Division of Consumer Protection. Ray Klinger, an investigator and certified law enforcement officer with the Division of Consumer Protection, was assigned to Martin’s complaint. As part of his investigation, Klinger spoke with Martin in person and obtained a statement from Podzimek. Klinger received documents from Podzimek attempting to explain the charges to Martin, and invoices for parts and labor in connection to the work done on Martin’s vehicle. Finally, Klinger subpoenaed Podzimek’s bank records from four different banks pursuant to SDCL 37-24-14. On October 30, 2016, while the investigation of Podzimek was ongoing, Martin passed away at the age of 83.

[¶7] As a result of Klinger’s investigation, Podzimek was indicted by a Day County grand jury on December 9, 2016, for one count each of: grand theft by deception in violation of SDCL 22-30A-1, SDCL 22-30A-3(1), and SDCL 22-30A-17; attempted grand theft by deception in violation of SDCL 22-30A-1, SDCL 22-30A-3(1), SDCL 22-30A-17, and SDCL 22-4-1; and deceptive act or practice in violation of SDCL 37-24-6(1). Klinger and Special Agent Greg Cleland also reviewed South Dakota Department of Revenue records regarding Podzimek’s business. As a result

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of that review, Podzimek was indicted a second time on September 27, 2017, for: two counts of failure to pay sales tax in violation of SDCL 10-45-48.1(2); one count of failure to pay sales tax two or more times in a twelve month period in violation of SDCL 10-45-48.1(8); and four counts of making a false or fraudulent sales tax return in violation of SDCL 10-45-48.1(1). Because the charges in both indictments stemmed from the same events, the two indictments were joined for trial by order of the circuit court on December 27, 2017.

[¶8] Prior to Podzimek’s trial, the State filed notice of intent to introduce evidence of four statements made by Martin to Klinger. Podzimek moved to suppress evidence of the statements on the basis that the statements constituted inadmissible hearsay, and that admission of the statements would violate his rights under the confrontation clause of the Sixth Amendment. Podzimek also moved to suppress evidence of his bank statements, claiming the subpoenas used to obtain the documents were improper. The circuit court denied Podzimek’s motions to suppress in a memorandum opinion on February 22, 2018.

[¶9]A jury trial was held on April 23-25, 2018, and Podzimek was convicted on all ten counts contained in both indictments. On May 2, 2018, Podzimek filed a motion to set aside his guilty verdicts on the grounds that the State failed to sufficiently prove Podzimek’s identity at trial. The circuit court denied Podzimek’s motion. On July 24, 2018, Podzimek was sentenced to ten years in the state penitentiary for the count of grand theft by deception. The circuit court suspended seven years of Podzimek’s sentence on certain conditions, including that Podzimek give up his sales tax license and pay restitution of $39,800 to the Martin Family Trust. The court gave Podzimek lesser, concurrent sentences for each of the remaining counts.span>

[¶10] Podzimek appeals his conviction and sentence, raising the following issues for our review: 1. Whether the circuit court erred by admitting the statements made by Martin to Klinger.

2. Whether the circuit court erred by admitting Podzimek’s bank records, subpoenaed by the State, into evidence.

3. Whether the circuit court erred by denying Podzimek’s post-trial motion to set aside his guilty verdicts.

Analysis & Decision

[¶11] 1. Whether the circuit court erred by admitting the statements made by Martin to Klinger .

[¶12] Prior to Podzimek’s trial, the state offered notice of intent to introduce several statements that Martin made to Klinger during the course of the investigation because Martin had died. Specifically, the State sought to introduce four statements made by Martin regarding: (1) why Martin made his initial complaint to the Consumer Protection Division; (2) why Martin took his vehicle to Podzimek’s auto repair business; (3) the amount of money Martin paid Podzimek, that the payment was made by check, and that the two checks were cancelled by Martin after consulting with his banker regarding fraud; and (4) Podzimek’s statement to Martin that a lien had been put on Martin’s vehicle. Podzimek argues that the admission of these statements violated his rights under the Confrontation Clause of the Sixth Amendment. He claims that the statements should have been suppressed because they were testimonial statements made to a law enforcement officer, and because he did not have the opportunity to

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confront or cross-examine Martin about the statements because Martin had died by the time of trial.

[¶13] The question of whether a defendant’s Sixth Amendment right to confrontation was violated is a constitutional question which we review de novo. State v. Spaniol, 2017 S.D. 20, ¶ 23, 895 N.W.2d 329, 338. "The Confrontation Clause of the Sixth Amendment to the United States Constitution, as applied to South Dakota through the Fourteenth Amendment, requires that in all criminal cases, the defendant has the right ‘to be confronted with the witnesses against him.’ " Id. ¶ 24; see also Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Davis, 401 N.W.2d 721, 724 (S.D. 1987). "The Confrontation Clause applies to witnesses testifying at trial and to the admission of hearsay." Spaniol, 2017 S.D. 20, ¶ 24, 895 N.W.2d at 338. "This right is generally satisfied when the defense is given a full and fair opportunity to probe and expose a witness’[s] infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’[s] testimony." Id. (quoting State v. Carothers, 2006...

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