State v. Gard

• Decision Date: 14 November 2007
• Docket Number: No. 23920.,23920.
• Citation: 742 N.W.2d 257,2007 SD 117
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Rex GARD, Defendant and Appellant.
• Court: South Dakota Supreme Court

742 N.W.2d 257

2007 SD 117

STATE of South Dakota, Plaintiff and Appellee, v. Rex GARD, Defendant and Appellant.

No. 23920.

Supreme Court of South Dakota.

Argued On October 1, 2007.

Decided November 14, 2007.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Thomas E. Adams of Voelker and Adams, Deadwood, South Dakota, Attorneys for defendant and appellant.

SABERS, Justice.

[¶ 1.] Rex Gard entered into a partnership to develop properties with Dr. Barry Smith and Dr. Rick Little. During the course of this partnership, Gard opened credit accounts in the names of his partners, allegedly without their permission. He also received money from the partnership to pay the partnership's bills, but kept the money instead. He was indicted on multiple charges of theft, forgery and a single count of conspiracy. A jury found Gard guilty of thirteen counts of theft, six counts of forgery, and the sole count of conspiracy to commit grand theft. After the judge consolidated the theft counts into a single count and ordered the various sentences to run consecutively, Gard's prison sentence totaled 65 years. He appeals raising multiple issues. We affirm.

FACTS

[¶ 2.] Gard was a contractor in Wyoming doing business as Planet Builders. Gard befriended Smith from Spearfish, South Dakota. In 2003, Smith hired Gard to finish building his home after Smith had problems with his contractor. Gard moved to South Dakota with his Planet Builders crew and finished the construction on Smith's home.

[¶ 3.] According to the State, after Gard completed Smith's home he "wanted further projects." The State claimed Gard came up with the idea of building town-houses, while Gard claimed it was a mutual decision. In any event, Smith and Little took steps to form a corporation, S & L Enterprises, in order to construct houses for profit.

[¶ 4.] S & L Enterprises never fully developed. The State claimed Gard was unhappy about being left out of the partnership because he and his company, Planet Builders, would be doing all the construction work. Gard convinced Smith and Little to include him and hire Planet Builders to do the construction. Thereafter, the group formed Dakota Development Properties (Dakota Development). Gard owned 30% of the company, while Smith and Little each owned 35%.

[¶ 5.] Smith and Little purchased two lots in the Sandstone Addition in Spearfish, South Dakota. Dakota Development planned to build a duplex on one lot, and the company obtained a construction loan through BankWest for the project. There was conflicting testimony regarding the manner in which Gard was to be paid. Gard claimed he was to receive payment through the construction loan, while Smith testified that Gard agreed to receive 30% of the project once it was sold, plus equity in the company. Little testified he thought Gard would receive payment through Planet Builders, plus 30% of the profit after the sale of the duplex, and equity in the company.

[¶ 6.] In February or March of 2004, Smith was diagnosed with cancer. Little became responsible for most of the day-to-day operations of Dakota Development. Little testified that Gard was to invoice for construction expenses and Little would write company checks to pay the invoiced amounts. Most of the time, Gard did not pay the construction expenses and instead kept the money. On some occasions, Gard would inflate the costs of supplies, receive the inflated price and not pay the bill.

[¶ 7.] In July of 2004, the construction loan was almost gone, the work by Planet Builders cost more than the original estimate, and Little discovered a "stack of bills" in the company post office box that had not been paid. Some bills had been turned over to collection agencies. After Little discovered the late bills, Gard claimed Little told him to only invoice for labor and that Little would pay the other expenses and materials bills directly to the suppliers. According to Gard, he had already purchased $17,000 in materials using checks from his personal accounts and was forced to stop payment on one of the checks due to Little's new billing rule.

[¶ 8.] Little and Smith confronted Gard about the unpaid bills. He initially claimed the bills were paid or that it was an accounting error by his wife, Karen Jacks.^* Despite Little and Smith's repeated attempts to gain access to the checkbook, Gard refused. Smith and Little also discovered that Gard and Jacks had opened multiple accounts using the doctors' personal information and signing their names.

[¶ 9.] Little testified that he received a phone call in September of 2004, where Gard admitted money was missing. However, Gard attempted to blame first Jacks and then Smith. Little informed the Spearfish police about the missing money and detectives interviewed Jacks. During an interview, Jacks claimed they had permission to use the doctors' personal information and sign their names. Detectives obtained a warrant and seized computers and paperwork from Gard's home.

[¶ 10.] On October 5, 2004, Gard was charged with two counts of grand theft by misappropriation of funds by contractor, subcontractor or supplier. On November 4, 2004, he was indicted on the same counts. Three subsequent superceding indictments were filed, which resulted in Gard being charged with fourteen counts of grand theft, one count of conspiracy to commit grand theft, and seven counts of forgery.

[¶ 11.] A trial was held on October 18-25, 2006. The jury convicted Gard of thirteen counts of theft, six counts of forgery, and conspiracy to commit grand theft. At sentencing, the judge consolidated the thirteen counts of theft into one conviction. Gard admitted to a part II habitual offender information, which enhanced all counts. He was sentenced to the maximum enhanced penalty for all counts and the sentences were to run consecutively on all counts, except the conspiracy and one forgery count. This resulted in a 65-year prison sentence. Gard appeals. We restate the issues as follows:

1. Whether the circuit court erred by not dismissing the grand theft charges because Gard was an owner of Dakota Development and unable, as a matter of law, to steal from it.

2. Whether the circuit court erred by denying Gard's motion to consolidate the forgery charges.

3. Whether the circuit court erred by not dismissing the forgery charges because the element of intent was absent.

4. Whether the circuit court erred by not dismissing forgery counts 17 and 19 because all the elements of forgery were not established.

5. Whether Gard's sentence of 65 years in prison, effectively a life sentence, fails to consider the question of rehabilitation and constitutes cruel and unusual punishment.

STANDARD OF REVIEW

[¶ 12.] When reviewing a sufficiency of evidence claim, we determine "whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict." State v. Owen, 2007 SD 21, ¶ 35, 729 N.W.2d 356, 367 (quoting State v. Mesa, 2004 SD 68, ¶ 9, 681 N.W.2d 84, 87). "A guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt." State v. Swalve, 2005 SD 17, ¶ 5, 692 N.W.2d 794, 797 (quoting State v. Phair, 2004 SD 88 ¶ 16, 684 N.W.2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶ 22, 654 N.W.2d 793, 800)).

[¶ 13.] 1. Whether the court erred by not dismissing the grand theft charges because Gard was an owner of Dakota Development and unable, as a matter of law, to steal from it.

[¶ 14.] The State claims Gard has waived this issue by failing to raise it to the circuit court. The record indicates Gard did not make a motion to dismiss based upon his claim that he was unable to steal from his own company or bring this claim to the circuit court's attention in any other manner. The motion to dismiss related to the charge for the excise tax reimbursement by Dakota Development that Gard never paid the State of South Dakota. However, Gard claims that this issue is properly in front of this Court by virtue of his not guilty plea. He claims his conviction places every element into question and this issue is capable of review.

[¶ 15.] While SDCL 23A-22-4 provides that "[a] plea of not guilty puts in issue every material fact constituting" the charged offense, it does not automatically preserve for appeal all of the issues relating to material elements of the crime. "Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level." State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203 (citing State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763). "The trial court must be given an opportunity to correct any claimed error before we will review it on appeal." Id. "To preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons." State v. Dufault, 2001 SD 66, ¶ 7, 628 N.W.2d 755, 757 (quoting State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443; SDCL 23A-44-13). Failing to raise an issue, thereby allowing the circuit court an opportunity to correct the claimed error, results in waiver of the issue. Id. Gard's failure to ask the circuit court to dismiss the theft charges on the specific ground that it was legally impossible for him to steal from his own partnership would waive the claim on appeal.

[¶ 16.] However, this is a question which may arise again and one of public interest. Both parties fully briefed and argued the issue at oral arguments; therefore, we will address the issue. See In re J.D.M.C., 2007 SD 97, ¶ 27, 739 N.W.2d 796, 805 (citing Nature's 10 Jewelers v. Gunderson, 2002...