State v. Franz

• Decision Date: 15 September 1994
• Docket Number: No. 18538,18538
• Citation: 526 N.W.2d 718
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Edgar Otto FRANZ, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 718

526 N.W.2d 718

STATE of South Dakota, Plaintiff and Appellee, v. Edgar Otto FRANZ, Defendant and Appellant.

No. 18538.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1994.

Decided Jan. 18, 1995.

Mark Barnett, Atty. Gen. and Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Mark DeBoer, Pennington County Public Defender's Office, Rapid City, for defendant and appellant.

PER CURIAM.

Edgar O. Franz (Franz) appeals his sentence for grand theft by receiving stolen property. We affirm.

FACTS

Franz's conviction arises out of the theft of an automobile in Rapid City, South Dakota in mid-June, 1993. On September 15, 1993, state filed an amended information charging Franz with one count of grand theft, an alternative count of receiving stolen property ¹ and one count of hit and run with property damage. ² Along with the information, state filed a Part II habitual offender information alleging that Franz was previously convicted of grand theft in Meade County, South Dakota in 1992.

Prior to trial, Franz filed a motion to dismiss the second count of the amended information charging receiving stolen property. Franz asserted the offense was erroneously charged as a felony when no evidence was presented during his preliminary hearing to establish that he was a dealer in stolen property. Franz contended proof that the defendant is a dealer in stolen property is an essential element of a felony charge for receiving stolen property. ³ The trial court denied Franz's motion to dismiss at a pretrial motions hearing.

Franz's jury trial took place on September 14, 1993. During settlement of the jury instructions, Franz submitted a proposed instruction that, in order to convict him of a felony for receiving stolen property, the jury had to find that he was a dealer in stolen property. The trial court rejected the proposed instruction as an inaccurate statement of the law.

The jury ultimately returned a verdict finding Franz guilty of receiving stolen property and hit and run with property damage. Before a trial to the court on the habitual offender information, Franz moved that his conviction for receiving stolen property be treated as a misdemeanor rather than a felony because no evidence was presented during trial to establish he was a dealer in stolen property. The trial court denied the motion, proceeded to take evidence on the habitual offender information and ultimately convicted Franz as an habitual felony offender. On October 5, 1993, Franz was sentenced to ten years in the state penitentiary and this appeal followed.

ISSUE

IS PROOF THAT THE DEFENDANT IS A DEALER IN STOLEN PROPERTY AN ESSENTIAL ELEMENT OF GRAND THEFT BY RECEIVING STOLEN PROPERTY?

There is no dispute over the fact that there is no record evidence to establish that Franz was a dealer in stolen property. Asserting this is an essential element to sentence him for felony, grand theft by receiving stolen property, Franz contends he could only be sentenced for misdemeanor, petty theft by receiving stolen property. We disagree.

In support of his contentions, Franz relies on the language of SDCL 22-30A-17(4) emphasized below:

Theft is grand theft, if:

* * * * * *

(4) In the case of theft by receiving stolen property, the receiver is a dealer in stolen property, the value of the property stolen exceeds five hundred dollars in value.

Theft in all other cases is petty theft. Grand theft is a Class 4 felony. Petty theft is divided into two degrees. Petty theft of one hundred dollars or more is in the first degree and is a Class 1 misdemeanor. Petty theft of less than one hundred dollars is in the second degree and is a Class 2 misdemeanor. (emphasis added).

The grammatical error in the emphasized language is obvious. There is no conjunction between the words "stolen property," and "the value". Thus, the plain language of the statute is ambiguous as to whether a defendant is guilty of grand theft by receiving stolen property if the value of the property stolen exceeds five hundred dollars or whether the defendant must also be a dealer in stolen property.

Ordinarily, "[w]hen the language of a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed." U.S. West Com. v. Public Utilities Com'n, 505 N.W.2d 115, 123 (S.D.1993). However, the existence of ambiguity in a statute mandates a judicial inquiry into the construction and interpretation of the statute. State v. Chaney, 261 N.W.2d 674 (S.D.1978). "Interpretation of [a] statute is a question of law and this court accords no deference to the trial court's interpretation." State v. Ventling, 452 N.W.2d 123, 125 (S.D.1990).

"In construing a statute, our purpose is to discover the true intention of the law and that intention must be ascertained primarily from the language expressed in the statute." Id. However, "[w]hen called upon to construe statutes, this court may look to the legislative history, title, and the total content of the legislation to ascertain the meaning." LaBore v. Muth, 473 N.W.2d 485, 488 (S.D.1991).

Resort to the legislative history of SDCL 22-30A-17 quickly reveals the cause of the error and ambiguity in its current text. The statute was last amended in 1990. Prior to that amendment, the pertinent provisions of the statute read as follows:

Theft is grand theft, if:

(1) The value of the property stolen exceeds two hundred dollars;

(2) The property stolen is livestock or a firearm;

(3) Property of any value is taken from the person of another; or

(4) In the case of theft by receiving stolen property, the receiver is a dealer in stolen property, the value of the property stolen exceeds two hundred dollars in value, or the property stolen is livestock or a firearm.

SDCL 22-30A-17 (1988 Rev.) (emphasis added). Under this version of the statute, a person clearly committed grand theft by receiving stolen property if he was a dealer in stolen property, the value of the property stolen exceeded two hundred dollars or the property stolen was livestock or a firearm.

In 1990, the pertinent provisions of SDCL 22-30A-17 were amended as follows: ⁴

Theft is grand theft, if:

(1) The value of the property stolen exceeds [DELETED: two hundred] [ADDED:five hundred] dollars;

(2) [DELETED:The property stolen is livestock or a firearm]

(3) Property of any value is taken from the person of another; or

(4) In the case of theft by receiving stolen property, the receiver is a dealer in stolen property, the value of the property stolen exceeds [DELETED: two hundred] [ADDED: five hundred] dollars in value [DELETED:, or the property stolen is livestock or a firearm].

1990 S.D.Sess.L. ch. 165, § 2. What was intended by the legislature with these amendments is obvious: first, it intended to raise the dollar limit for grand theft from two hundred to five hundred dollars; second, it intended to delete the provisions that automatically made the theft of any livestock, regardless of value, grand theft; and, third, it intended to delete the provisions that automatically made the theft of any firearm, regardless of value, grand theft. There is nothing, however, that indicates the legislature intended that a person must be a dealer in stolen property to be convicted of grand theft by receiving stolen property.

In making the various amendments necessary to accomplish its intentions, the legislature inadvertently amended out the essential conjunction in SDCL 22-30A-17(4), the word "or." Because of this error, SDCL 22-30A-17(4) made a person guilty of grand theft by receiving stolen property if the person, "is a dealer in stolen property, the value of the property stolen exceeds five hundred dollars in value." This definition makes no sense and leads to the ambiguity we have previously identified.

In resolving an ambiguity, "it is the general rule that courts may not strike out and insert other words or numerals in a statute. The rule, however, is not without well defined exceptions." Elfring v. Paterson, 66 S.D. 458, 461, 285 N.W. 443, 445 (1939). As the Supreme Court of Iowa has expressed:

Ordinarily, we may not, under the guise of judicial construction, add modifying words to the statute or change its terms. As an exception to this rule, we have made changes in legislative enactments to correct inadvertent clerical errors or omissions which frustrate obvious legislative intent. Judicial alteration has also been allowed to avoid absurd, meaningless, irrational or unreasonable results. We exercise extreme caution and are reluctant to adopt such changes.

Schultze v. Landmark Hotel Corp., 463 N.W.2d 47, 49 (Iowa 1990) (citations omitted). Similar expressions of the law can be found in a number of other jurisdictions. See, e.g., Mankato Citizens Tel. Co. v. Commissioner of Taxation, 275...