State v. Suchor, 010621 SDSC, 28993-r-PJD

Docket Nº:28993-r-PJD
Opinion Judge:DEVANEY, JUSTICE.
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ROBERT SUCHOR, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General. MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee. PAUL J. ANDREWS Rapid City, South Dakota, Attorney for defendant and appellant.
Judge Panel:JENSEN, Chief Justice, and KERN and SALTER, Justices, and GILBERTSON, Retired Justice, concur. MYREN, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
Case Date:January 06, 2021
Court:Supreme Court of South Dakota

2021 S.D. 2

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ROBERT SUCHOR, Defendant and Appellant.

No. 28993-r-PJD

Supreme Court of South Dakota

January 6, 2021

CONSIDERED ON BRIEFS MAY 26, 2020

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA, THE HONORABLE MICHELLE K. COMER Judge.

JASON R. RAVNSBORG Attorney General.

MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.

PAUL J. ANDREWS Rapid City, South Dakota, Attorney for defendant and appellant.

DEVANEY, JUSTICE.

[¶1.] Robert Suchor appeals the jury's verdict finding him guilty of three counts of grand theft by misappropriation of funds by a contractor. He asserts that the State failed to present sufficient evidence on one or more essential elements, and therefore, the circuit court erred in denying his motion for judgment of acquittal on each conviction. We reverse all three convictions.

Factual and Procedural Background

[¶2.] Robert Suchor is a contractor from Pine Haven, Wyoming. He owned and operated New Wave Builders, and as discussed below, in 2016, he entered into three separate contracts to construct homes for three families in Spearfish, South Dakota.

The Dahl Project

[¶3.] In April 2016, Carole and Dennis Dahl met Suchor through their realtor, Sandy Donahue. After multiple meetings, the Dahls and Suchor executed a contract on November 30, 2016, for Suchor to build the Dahls' home for $250, 000. The contract provided that the Dahls were to pay Suchor $25, 000 upon signing the contract. The contract further provided that Suchor would finish the concrete foundation and interior flatwork within 30 days after receiving the first contract payment.

[¶4.] The Dahls paid Suchor $25, 000 on December 1, 2016. However, construction on the home did not begin as planned, 1 and after the Dahls learned that Suchor had yet to obtain a building permit, the Dahls terminated their contract with Suchor on December 16. They requested he return the $25, 000, but Suchor refused, indicating he had spent approximately 104 hours on the project (arguably worth $10, 400) and had purchased Styrofoam foundation forms. Ultimately, the Dahls filed a civil suit against Suchor, which was stayed pending the resolution of this criminal proceeding.

The Pavich Project

[¶5.] Frank and Kit Pavich wanted to build and thereafter sell for profit what they called a "spec-house." Sandy Donahue also introduced the Paviches to Suchor, and on July 13, 2016, the parties executed a contract whereby Suchor would build the spec-house for $332, 000. Under the contract, Suchor was to be issued progress payments, and the disbursements to Suchor were to be processed through Black Hills Land and Title. Shortly after Suchor began work on the project, the Paviches decided to make the spec-house their personal residence. As a result, multiple changes were made to the construction plans. Rather than execute a new contract, the parties agreed that the Paviches would pay for any upgrades or extras.

[¶6.] It is undisputed that over the course of the project, Suchor and Frank Pavich's relationship deteriorated. Eventually the parties could no longer work together, and on May 27, 2017, before the project was finished, Suchor stopped working on it. By that time, according to Pavich, he had paid Suchor $329, 000 of the $332, 000 contract price and had also spent $99, 000 on the change orders and upgrades. The record is not clear as to how much of this $99, 000 was initially expended by Suchor and then reimbursed by Pavich, or whether some of these expenses were paid directly by Pavich after Suchor stopped working on the project.

[¶7.] Pavich testified that after Suchor left the job, he learned that Suchor had not paid an invoice from Wires R Us for $16, 681.66 for electrical work done on the project. Suchor maintained that he did not pay this bill because Pavich still owed him money on the project, and also because he had reached an agreement with Pavich when they parted ways as to how the remaining bills would be handled. Ultimately, Pavich paid Wires R Us $20, 852.07 in December 2017, which, according to Pavich, was the total amount due after all the electrical work on the contract had been finished.

The Feeser Project

[¶8.] On July 29, 2016, Justin and Kristen Feeser entered into a contract with Suchor for the construction of a home for $385, 000. The contract required that the home be constructed by the end of November 2016. The evidence presented at trial revealed that Suchor's work on this project was fraught with issues.2 Feeser eventually became so frustrated with Suchor's work that in July 2017, Feeser offered to sell Suchor the unfinished house. Suchor agreed; however, he could not obtain financing. The Feesers then agreed, at Suchor's suggestion, to sell the house to Suchor's brother. Before the scheduled closing, Feeser learned that an outstanding balance was owed to J&M Drywall for $13, 184. Feeser asked Suchor about this bill on August 9, 2017, the day before the scheduled closing, and according to Feeser, Suchor confirmed that J&M Drywall had been paid in full.

[¶9.] Suchor later explained that he had planned to pay J&M Drywall the amount due with funds Feeser had agreed to pay him at closing. Based on this understanding, Suchor had given J&M Drywall a check that same day (August 9) for the balance due, but after the closing did not occur as planned, Suchor's check bounced. Ultimately, the sale fell through, and Feeser fired Suchor on August 19, 2017. According to Feeser, he had paid Suchor $330, 000 of the $385, 000 due under the contract. Feeser later learned that the check Suchor issued to J&M Drywall had bounced, and on September 29, 2017, Feeser paid J&M Drywall the outstanding invoice balance. Feeser then brought a civil suit against Suchor, which at the time of the criminal trial, was in arbitration.

The Criminal Case

[¶10.] Meanwhile, on July 11, 2017, Frank Pavich filed a complaint with the Spearfish Police Department, claiming that he gave Suchor money to pay Wires R Us but Suchor did not remit payment. During the investigation, Detective Jason De Neui received additional complaints about Suchor from the Dahls and the Feesers. On September 12, 2017, Detective De Neui discussed the homeowners' concerns with Suchor in a recorded telephone call. Suchor denied any wrongdoing, and later provided the detective a detailed memo responding to the various complaints by the homeowners.

[¶11.] On September 20, 2017, a grand jury indicted Suchor on three counts of grand theft by misappropriation of funds by a contractor. On October 17, 2018, the grand jury issued a superseding indictment alleging, in addition to the same three counts of misappropriation of funds by a contractor as to each project, three alternative counts of grand theft by deception and two alternative counts of grand theft by embezzlement as to the Dahl and Pavich projects. Suchor pled not guilty, and the case proceeded to a jury trial on February 19 through February 22, 2019.

[¶12.] At trial, the State presented testimony from Carole Dahl, Frank Pavich, and Justin Feeser. The State also presented testimony from Spearfish building official Tom Paisley, real estate agent Donahue, a representative from Wires R Us, and a past employee of Suchor's. After the State rested, Suchor moved for judgment of acquittal on all charges. The circuit court granted the motion on the alternative count of grand theft by deception related to the Dahl project and denied the motion as to all remaining charges.3 However, the court expressed "reservations" about the remaining grand theft by deception and embezzlement counts, noting "there's very little evidence that there was a specific intent to defraud . . . ."

[¶13.] Thereafter, Suchor testified in his defense. He acknowledged that he received $25, 000 from the Dahls and did not pour their concrete foundation, but he noted that the 30-day timeframe for completing this phase had not yet expired when he was fired and pointed to provisions in the contract allowing for delays due to weather conditions. He testified that he did not return the money because he had incurred expenses in preparing to begin construction on the Dahl project. As to the Pavich project, Suchor testified that he did not pay the outstanding balance on the Wires R Us invoice because Pavich owed him money on the contract for services performed. In regard to the Feeser project, Suchor testified that he had intended on paying the drywall bill from the proceeds of the closing on the sale of the Feeser house to his brother, but when that sale did not occur, he did not have the funds to pay the bill. Suchor testified that he did not thereafter pay the remaining drywall balance because the Feesers owed him over $13, 000 for other services performed.

[¶14.] After Suchor testified, the circuit court reconsidered Suchor's motion for judgment of acquittal on the remaining counts and granted the motion as to all the alternative theft counts related to each of the three projects.4 Only the three counts alleging grand theft by misappropriation of funds by a contractor were submitted to the jury, and the jury found Suchor guilty on all three counts. In a post-trial brief, Suchor renewed his motion for judgment of acquittal, which the circuit court denied. The court sentenced Suchor to ten years in the penitentiary on each count to run concurrently, all suspended on conditions including that Suchor pay restitution to all the homeowners. Suchor appeals, asserting that the circuit court erred in denying his motion for judgment of acquittal.

Standard of Review

[¶15.] We review a denial of a motion for judgment of...

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