State v. Morse

• Decision Date: 16 July 2008
• Docket Number: No. 24614.,24614.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Wyatt MORSE, a/k/a ROY FRALEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

753 N.W.2d 915

2008 SD 66

STATE of South Dakota, Plaintiff and Appellee, v. Wyatt MORSE, a/k/a ROY FRALEY, Defendant and Appellant.

No. 24614.

Supreme Court of South Dakota.

Considered on Briefs April 21, 2008.

Decided July 16, 2008.

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

Eric D. Whitcher, Lawrence County Public, Defender's Office, Deadwood,

South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Wyatt Morse agreed to convert Janice Heffron's second-floor room into a small bathroom. He said his plumbing work would be above and beyond code and that he could complete the project in five weeks for $5,000. After ten weeks, the project was not finished. Morse quit without explanation. He had been paid in excess of $6,000. Afterwards, Janice learned that some of the work he did was faulty. Morse was charged and convicted of theft by deception. On appeal, we reverse because there was insufficient evidence from which a jury could infer that Morse had the intent to defraud.

Background

[¶ 2.] Janice Heffron purchased a home in Deadwood, South Dakota. It was listed on the historical registry and was originally her grandfather's. She planned on remodeling and restoring the structure. In the fall of 2005, Janice hired Ricardo Trevino to work on the exterior. Janice also wanted a room on the second floor converted into a small bathroom. Trevino indicated that he could likely complete the project for between $7,000 and $10,000, but he did not provide a formal bid.

[¶ 3.] Wyatt Morse was Janice's neighbor and had come to her house while Trevino was working. Through discussions with Janice, Morse learned about her desire to have a second-floor bathroom. He proposed to convert the second-floor bedroom into a bathroom in five weeks for $5,000. According to Janice, Morse "stalked" her about doing the remodeling project, repeatedly stating he could do it "easy, quick, cheap." Nonetheless, Janice told her mother, Maxine Heffron, who would finance the project, about Morse's offer. Maxine and Janice then went to Morse's home, where he showed them the bathroom he had restored. Janice and Maxine were impressed. Morse also told them that he had plumbing experience, that his work would be above and beyond code, and that the local inspector did not inspect his work because he was so good.

[¶ 4.] In December 2005, Janice, Maxine, and Morse made an oral agreement for him to complete the project in five weeks for $5,000, with payments in cash installments. Maxine wanted to pay using personal checks to assure a paper trail, but Morse convinced her to pay him with cash. According to Janice, he wanted to be paid in cash to avoid the IRS. They agreed that Morse would convert the room into a bathroom, install an antique claw-foot tub (one that he would provide personally), put wainscoting on the walls, install an old tin ceiling like the one in his bathroom, and install crown molding.

[¶ 5.] Morse began work in January 2006. His efforts continued until the second week of March. He repaired the kitchen ceiling and wall. He installed plumbing fixtures in the area he repaired. He removed the old water heater and installed a new one. He ran a freeze-proof spigot outside the house. He put in a bathroom vent with an antique vent cover. He custom built a bathroom cabinet at no extra cost to the Heffrons. He mounted wainscoting and crafted a surrounding shelf with rope lighting. He put in a faux tin ceiling, with crown molding and trim. He installed water pipes and a new drain stack.

[¶ 6.] The project took longer and cost more than originally agreed. Morse ran into difficulties when he attempted to install a tankless water heater that Maxine was aware took approximately two weeks effort. He was never able to install the tankless heater, and ended up installing a traditional tanked water heater. Morse also experienced problems with some of the pipes he installed. Janice told him that they were leaking. He repaired them and blamed the leaks on bad batches of solder.

[¶ 7.] Maxine paid Morse somewhere between $6,000 and $6,500 cash. Her last payment was on February 28, 2006. Some of the cash, she said, was for "off contract" materials that were not part of the contract price. In March 2006, Morse fell and aggravated his already bad back. Before Janice and Maxine hired him, Morse had told them that he had a back condition. After his fall in March, he came to the job site less and less. Then, after the second week in March he stopped coming entirely. The Heffrons tried contacting him through phone calls, personal visits, and certified mail. He never responded.

[¶ 8.] After Morse abandoned the project, Janice contacted a licensed plumber, who examined Morse's work and gave Janice an estimate on the cost of completing the project. The plumber pointed out several deficiencies in Morse's work. In particular, Morse incorrectly installed the water heater, the pipes for the sink, lavatory, and bathtub. He used S-traps, illegal in South Dakota, and improperly vented the floor drains. Because he installed the water heater incorrectly, carbon monoxide was leaking into Janice's home. In sum, Morse's work on the bathroom, in the opinion of the licensed plumber, had no value to the home.

[¶ 9.] On October 12, 2006, Morse was indicted for grand theft by deception in violation of SDCL 22-30A-3(1) and SDCL 22-30A-3(3), or in the alternative, grand theft by obtaining property without paying. The alternative count was later dismissed. A Lawrence County jury returned a guilty verdict. Morse admitted to a Part II Information and was sentenced to five years in prison. He appeals asserting that the evidence was insufficient to sustain the verdict.

Standard of Review

[¶ 10.] Our de novo standard of review on a sufficiency claim is well established:

"[A]ll of the evidence is to be considered in the light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). There must be substantial evidence to support the conviction. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), superseded on other grounds, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The "inquiry does not require [an appellate] court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789, 61 L.Ed.2d 560 (emphasis in original) (quoting Woodby v. Immigration and Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. Evidence is insufficient, and therefore not substantial, when no rational trier of fact could find guilt beyond a reasonable doubt. Id.

State v. Tofani, 2006 SD 63, ¶ 37, 719 N.W.2d 391, 401.

Analysis and Decision

[¶ 11.] Morse argues that the State failed to prove he had the requisite intent to defraud the Heffrons. He does not dispute that the work he did on Janice's home was faulty and resulted in the Heffrons having to pay considerably more in repairs. Nonetheless, he claims that his faulty work created a classic breach of contract claim, because when he entered into the agreement to remodel the bathroom, he believed he was capable of doing quality work and fully intended on completing the project. The State, on the other hand, argues that Morse "created and reinforced the false impression in the minds of Jan and Maxine Heffron that he was licensed to, and capable of, installing a second floor bathroom." More particularly, the State contends that Morse "deceived" the Heffrons on his ability to do the work, "misled" them with his statements that his work would be above code, and "took actions to further reinforce the false impression that he was able to properly install the bathroom."¹

[¶ 12.] Theft by deception is a specific intent crime. State v. Heftel, 513 N.W.2d 397, 400 (S.D.1994) (citing State v. Klein, 444 N.W.2d 16, 19 (S.D.1989)). 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.'" Id. (quoting State v. DeWall, 343 N.W.2d 790, 792 (S.D.1984)). Therefore, Morse must have had the "purpose to deceive." See State v. Hurst, 507 N.W.2d 918, 920 (S.D.1993). "`It is only where [actors do] not believe what [they] purposely caused [their victims] to believe, and where this can be proved beyond a reasonable doubt, that [these actors] can be convicted of theft.'" Id. (quoting Model Penal Code § 223.3 cmt 3(b)).

[¶ 13.] In State v. Fyffe, the Ohio Court of Appeals ruled there was insufficient evidence to convict the defendant for knowingly depriving the victim of property, i.e., money, by deception, despite the fact that the defendant took money and did not perform. 67 Ohio App.3d 608, 588 N.E.2d 137, 141 (1990). Fyffe agreed to do numerous home repairs for Dollie Traugotthad. Id. at 139. After he completed the first set of repairs, he and Dollie talked about some additional work, and he agreed to resurface and install a turn-around in the driveway. After Fyffe did some of the work, he left and never returned. Fyffe was indicted for grand theft for obtaining over $6,000 from Dollie by deception. At trial it was alleged that Fyffe overcharged for his work, failed to complete some of the promised work, and, according to expert testimony, performed below acceptable standards. Id. at 141. The trial court found him guilty of theft by deception. In reversing the conviction, the court ruled...