State v. Heftel

• Decision Date: 11 January 1994
• Docket Number: No. 18327,18327
• Citation: 513 N.W.2d 397
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Philip Ross HEFTEL, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 397

513 N.W.2d 397

STATE of South Dakota, Plaintiff and Appellee, v. Philip Ross HEFTEL, Defendant and Appellant.

No. 18327.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1994.

Decided March 16, 1994.

Mark Barnett, Atty. Gen., Wade Hubbard, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Thomas E. Adams of Voelker and Adams, Lead, for defendant and appellant.

MILLER, Chief Justice.

Philip Heftel (Heftel) appeals convictions for committing grand theft in violation of 22-30A-3(3) and being an habitual offender under SDCL 22-7-8. We affirm.

FACTS

Heftel moved to Deadwood, South Dakota, in July, 1992, and was employed at the Silverado Casino. Upon arriving in Deadwood, he opened a joint savings account (not a checking account) at the local branch of the Norwest Bank. ¹ Heftel claimed he had always been unable to keep a checkbook balanced so he relied on the bank to monitor the balance in the savings account.

On the afternoon of September 14, 1992, Heftel told his roommate Dave Green (Green) that he was expecting "thirteen hundred and some odd dollars" to be wired to the account. Accompanied by Green, Heftel drove to the Norwest Bank drive-up window shortly after 3:00 p.m.; the main part of the bank was already closed.

Heftel asked the teller whether some money he had been expecting had been transferred into his account. Although the bank's computer did not yet show the transfer, the teller questioned other bank personnel and learned a wire transfer of $1,300 had been received but not yet posted to Heftel's account. She then wrote down the account balance, including the transfer, and gave the slip of paper to Heftel.

Because the drive-up window was busy, another teller began to wait on Heftel. He requested a withdrawal slip from the second teller and tried to withdraw $1,350. The teller checked her computer and found there was not enough money in his account. When she questioned the transaction, she was informed by the first teller that the bank had received a transfer that was not yet posted. The second teller then overrode the bank's computer, misread the numbers on the withdrawal slip and gave $1,550 to Heftel--two hundred dollars more than he had requested. Heftel took the money and left the bank.

Due to various bank delays, the withdrawal overdrafting Heftel's account did not show up on the bank's computer until September 17. Meanwhile, on September 16, at 3:30 in the afternoon, Heftel had gone to the drive-up window and inquired about the balance in his account (which by now included the $1,300 wire transfer). He did not ask whether any money had been deposited to the account through a subsequent wire transfer. When the teller said the computer showed a balance of over $1,360 dollars, Heftel withdrew $700 in cash and left the bank.

On September 17, Norwest discovered what had happened and contacted the Lawrence County Sheriff's Department. After investigation, Heftel was arrested and charged with grand theft by deception.

On September 29, 1992, in an unrelated matter, Heftel was arraigned on charges of assault and child abuse. A Part II Information listing seven previous felony convictions and alleging Heftel was an habitual criminal was filed by the State in that proceeding. At that arraignment, Heftel requested that his arraignment on the grand theft charge be delayed until a later time; the court granted his motion.

A Part II Information identical to the one filed in the assault action was given to the judge the morning of Heftel's arraignment on the grand theft charge on October 13, 1992. During the arraignment, the court informed Heftel the Part II Information had been filed, listed the previous felonies alleged, questioned whether Heftel had received a copy of the information, and advised him of the possible sentence enhancements if he were convicted of being an habitual offender.

A jury found Heftel guilty of grand theft by deception for stealing $700 from Norwest Bank on September 16, 1992. In a subsequent trial to the court, Heftel was found to be an habitual offender. On March 15, 1993, he was sentenced to seventy years in the South Dakota State Penitentiary, with twenty years suspended on condition he make restitution to Norwest Bank. He appeals, stating three issues.

DECISION

I. DID THE TRIAL COURT ERR IN DENYING HEFTEL'S MOTION FOR A JUDGMENT OF ACQUITTAL BASED ON INSUFFICIENT EVIDENCE?

Our standard of review of a denial of a motion for judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Buller, 484 N.W.2d 883 (S.D.1992) cert. denied, --- U.S. ----, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992); State v. Gallipo, 460 N.W.2d 739 (S.D.1990). In determining the sufficiency of the evidence on appeal, the question is 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. Svihl, 490 N.W.2d 269, 274 (S.D.1992); State v. Banks, 387 N.W.2d 19, 27 (S.D.1986).

It is the function of the jury, not this court, to resolve conflicts in the evidence, determine witness credibility, and weigh the evidence. "We afford the strongest presumption in favor of the jury's determination of credibility." State v. Arguello, 502 N.W.2d 548, 552 (S.D.1993); State v. Martin, 493 N.W.2d 223 (S.D.1992); State v. Huber, 356 N.W.2d 468 (S.D.1984).

All elements of a crime, including intent, may be proven through circumstantial evidence. State v. Davi, 504 N.W.2d 844, 856-57 (S.D.1993). The "state of mind of the actor at the time he commits the offense, may be determined from his acts, conduct and inferences fairly deducible from the circumstances." Huber, 356 N.W.2d at 473.

Heftel claims State did not present sufficient evidence to support the verdict in general or to sustain a finding that he had the specific intent necessary to commit grand theft by deception. ² This court has previously resolved that theft by deception is a specific intent crime. State v. Klein, 444 N.W.2d 16, 19 (S.D.1989). We have explained that " 'intent to defraud' means to act willfully and with the specific intent to deceive or cheat, ordinarily for the purpose of either causing some financial loss to another or bringing about some financial gain to one's self." State v. DeWall, 343 N.W.2d 790, 792 (S.D.1984) (quoting South Dakota pattern jury instruction (criminal) 1-1-4). "This court over the past several years has repeatedly analyzed the specific intent/general intent dichotomy. The use of the terms 'intentionally' or 'knowingly' merely designate[s] that the culpability required is something more than negligence or recklessness." State v. Shilvock-Havird, 472 N.W.2d 773, 777 (S.D.1991) (citing State v. Balint, 426 N.W.2d 316 (S.D.1988); Huber, 356 N.W.2d at 472; State v. Barrientos, III, 444 N.W.2d 374 (S.D.1989); State v. Bailey, 464 N.W.2d 626 (S.D.1991)).

On September 14, 1992, Heftel advised Green that he was expecting a wire transfer of approximately $1,300. At the drive-up window, he filled out a withdrawal slip for $1,350 and received $1,550 by mistake. Green, who was in the vehicle with Heftel, testified: "He withdrew the money, and he counted it out at the window. And counted it out two, three times. And he said he'd been paid [$]200 extra dollars. And I counted it out, and he was $200 extra." The teller who had made the error testified that Heftel counted the money for a long period of time.

Green then testified concerning his conversations with Heftel on the 16th of September:

A He told me he was going to close out his and Leigh Ann's account. There was only $10 or so in there. He called me that afternoon and told me that the wire that he had picked up Monday had been transferred to his account, and he withdrew another $700 to put tires on his pickup and miscellaneous things.

Q Do you know what wire he was talking about?

A It was the wire from his mother.

Q Is that the one you already testified about?

A Yes.

Q From Monday?

A Yes.

Q How much did he say he took out?

A $700.

* * * * * *

Q And then he told you--How much did he tell you was in it when he actually went to check?

A They had put the whole [$]1,350, the wire, into his account.

Q Again?

A Again. A second time.

Heftel testified that he did not notice the extra $200 given to him by mistake on the 14th. He swore the additional money in the account on the 16th had come from a second wire transfer to his account from Andrew Goldstein, an Arizona man he claimed owed him money.

Lawrence County Sheriff's Department investigator James Charles testified that the telephone number Heftel had given him for Goldstein was "a no-good number" and his investigation through the Arizona police had failed to find anyone by that name. Investigation revealed there had not been a second wire transfer into Heftel's Norwest account.

Heftel claims that Green testified falsely. Evidence showed that after Heftel was arrested, Green wrecked Heftel's truck, sold some of his property and kept the money, and gave other property belonging to Heftel to Leigh Ann Ricker. Green also admitted that he was on probation for receiving stolen property.

Although the evidence was conflicting, the jury obviously believed Green's testimony that Heftel knew about the mistake before he took the money. Accord, State v. Weber, 487 N.W.2d 25, 28 (S.D.1992) ("[i]n order to determine what Weber specifically intended, the jury had to weigh the credibility of Weber and Fey"). It is not a proper function of this court to resolve evidentiary conflicts--the jury is the exclusive judge of the credibility of witnesses and the weight of the evidence in South Dakota. State v. Battest, 295 N.W.2d 739, 742 (S.D.1980); ...