#25790-a-JKK

2011 S.D. 19

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                   * * * *

JAMES DOUGLAS LAWRENCE,                      Petitioner and Appellant,

v.

DOUGLAS L. WEBER, Warden of the
South Dakota State Penitentiary,
Sioux Falls, South Dakota,                   Respondent and Appellee.

                                   * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                  HUTCHINSON COUNTY, SOUTH DAKOTA

                                   * * * *

                     HONORABLE BRUCE V. ANDERSON
                                Judge

                                   * * * *


PATRICK J. GLOVER of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota                    Attorneys for petitioner
                                             and appellant.
MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for respondent
                                             and appellee.

                                   * * * *
                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 16, 2011

                                             OPINION FILED 05/04/11
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KONENKAMP, Justice

[¶1.]        James Lawrence appeals the circuit court’s denial of his petition for

habeas corpus, arguing that there was insufficient evidence to support his

conviction for theft by deception.

                       Facts and Procedural Background

[¶2.]        In January 1996, Lawrence went to the home of Marcella Koster,

knocked on her door, and convinced her to let him waterproof her basement walls.

Lawrence told Koster that FEMA would reimburse her for the cost of the work.

Over the next several months, Lawrence went to the home four times for periods

ranging from two to four hours and each time asked Koster for payment before

leaving. Koster wrote Lawrence four checks totaling $5,000.90.

[¶3.]        Lawrence’s work was utterly deficient. He applied a substance to the

walls that was essentially a water sealant but was completely ineffective as a

waterproofing material. He also drilled several holes in the walls and filled them

with concrete, which several expert witnesses said did almost nothing to strengthen

the walls. The work did not stop the seepage in Koster’s walls.

[¶4.]        Each time Lawrence came to her home, Koster would ask him about

the FEMA reimbursement. Lawrence’s responses varied wildly. On one occasion,

he told Koster that he was going to take pictures of the basement walls and send

them to FEMA. On another occasion, he said he was “taking care” of the

reimbursement. On yet another occasion, he told Koster that FEMA would be

contacting her. Finally, he gave Koster an invoice and told her she needed to turn it




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in to FEMA. The invoice was almost completely illegible, and the amount was more

than Lawrence had charged Koster for his work.

[¶5.]        A short time after Lawrence completed his work, Koster received a

phone call from someone claiming to be a FEMA official. The caller informed Koster

that he needed to take pictures of the basement. But no one came to take the

pictures, and Koster concluded that the call was a fake. Eventually, Koster

contacted the local FEMA office and was told that they once offered a

reimbursement program similar to that described by Lawrence but that it ended in

1994. FEMA refused to reimburse Koster for any of the work.

[¶6.]        On May 1, 2003, a jury found Lawrence guilty of theft by deception.

He was sentenced to a term of twenty-five years in the South Dakota State

Penitentiary. He then appealed to this Court, which affirmed his conviction. In

June 2006, Lawrence filed a petition for writ of habeas corpus alleging, among other

things, that his constitutional rights had been violated when he was convicted

based on insufficient evidence. The circuit court denied the motion. Lawrence

appeals.

                               Standard of Review

[¶7.]        “A habeas corpus applicant has the initial burden of proof to establish

a colorable claim for relief.” Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463,

468 (citing Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1025, 82 L. Ed.

1461 (1938)). Additionally,

             Habeas corpus can be used only to review (1) whether the court
             has jurisdiction of the crime and the person of the defendant; (2)
             whether the sentence was authorized by law; and (3) in certain
             cases whether an incarcerated defendant has been deprived of

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             basic constitutional rights. Habeas corpus is not a remedy to
             correct irregular procedures, rather, habeas corpus reaches only
             jurisdictional error. For purposes of habeas corpus,
             constitutional violations in a criminal case deprive the trial
             court of jurisdiction.

Piper v. Weber, 2009 S.D. 66, ¶ 7, 771 N.W.2d 352, 355 (quoting Steichen v. Weber,

2009 S.D. 4, ¶ 4, 760 N.W.2d 381, 386). “Habeas corpus review does not substitute

for direct review.” Id. (quoting Steichen, 2009 S.D. 4, ¶ 4, 760 N.W.2d at 386). “The

applicant for habeas corpus must satisfy the initial burden to prove the need for

relief by a preponderance of the evidence.” Id.

                               Analysis and Decision

Whether sufficient evidence was presented at trial to support a conviction for theft by
deception.

[¶8.]        When reviewing a sufficiency of the evidence claim, “[a]ll of the

evidence is to be considered in the light most favorable to the prosecution.” State v.

Morse, 2008 S.D. 66, ¶ 10, 753 N.W.2d 915, 918 (emphasis omitted) (quoting

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979)). “There must be substantial evidence to support the conviction.” Id. “[T]he

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. (quoting Jackson, 443 U.S. at 318-19,

99 S. Ct. at 2789). “Evidence is insufficient, and therefore not substantial, when no

rational trier of fact could find guilt beyond a reasonable doubt.” Id.

[¶9.]        Lawrence was convicted of a violation of SDCL 22-30A-3, which

provides:



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             Any person who obtains property of another by deception is
             guilty of theft. A person deceives if, with intent to defraud, that
             person:
                    (1) Creates or reinforces a false impression, including
                        false impressions as to law, value, intention or other
                        state of mind.

Lawrence argues that the State failed to prove that he acted with the specific intent

to defraud Koster. In support of his argument, Lawrence cites three recent cases in

which this Court overturned convictions for theft by deception on the ground that

there was insufficient evidence that the defendants acted with the intent to defraud.

See State v. Kessler, 2009 S.D. 76, 772 N.W.2d 132; State v. Jackson, 2009 S.D. 29,

765 N.W.2d 541; Morse, 2008 S.D. 66, 753 N.W.2d 915. All three of those

defendants were contractors who either failed to complete their projects or did

exceedingly poor work.

[¶10.]       In Morse, we noted that “[t]heft by deception is a specific intent crime.”

2008 S.D. 66, ¶ 12, 753 N.W.2d at 919. “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. Heftel, 513 N.W.2d 397, 400 (S.D. 1994)). “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 State v. Hurst, 507 N.W.2d 918, 920 (S.D. 1993)).

[¶11.]       Relying on this line of cases, Lawrence argues that there was

insufficient evidence to prove that he acted with the intent to defraud Koster. He

argues that “[t]he amount [he] charged for his work was more than the value of the

work performed and the job was not completely finished.” This fact pattern, he

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claims, is similar to those in Morse and Jackson. But there were several major

pieces of evidence offered against Lawrence that were not present in Morse and

Jackson.

[¶12.]       First, Koster’s testimony established that Lawrence repeatedly lied

about the FEMA reimbursement program. She testified that she never would have

allowed Lawrence to perform the work had she not believed she would be

reimbursed for it. Each time Koster questioned Lawrence about the

reimbursement, he continued to lead her to believe that she would be reimbursed.

He told her that he was “taking care of it” or that he needed to take pictures of the

basement to send to FEMA. In fact, Lawrence used the reimbursement as an

excuse to do additional work on Koster’s basement. Each time he came to the home,

he told her that he needed to perform additional work or FEMA would not

reimburse her. Lawrence never disputed that he led Koster to believe that she

would be reimbursed.

[¶13.]       Next, there were several pieces of “other acts” evidence that

demonstrated Lawrence knew FEMA would not reimburse Koster. The most

notable was the deposition of Agatha CaJacob. Lawrence did some work for

CaJacob in 1993. After completing the work, Lawrence returned to CaJacob’s home

in an attempt to get a signature that he claimed was necessary for FEMA

reimbursement. CaJacob, however, had already contacted FEMA and was told that

she would not be reimbursed for Lawrence’s work. She informed him of this and

refused to sign his document.




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[¶14.]       Additionally, Lawrence’s brother, Mike, testified for the State at trial.

Mike testified that he was assisting Lawrence with the work in Koster’s basement

when Koster came downstairs and commented that it would be nice to be rid of the

water in her basement. After she left, Mike told his brother that “if she thinks this

is going to stop the water, it’s not.” Lawrence responded that it “wasn’t [his]

problem,” and stated, “It’s not my fault if she thinks this is going to stop the water

from coming in.”

[¶15.]       The final piece of evidence was the invoice that Lawrence gave to

Koster that she could not read and that did not match the amount of the four checks

Koster paid Lawrence. Further, the invoice did not accurately represent the work

and the materials that Lawrence provided. Mike Lawrence acknowledged that the

invoice did not accurately represent the work that was done or the amount that

Koster was charged.

[¶16.]       There were no facts like these in Jackson or Morse. Those cases were,

as this Court noted, “nothing more than civil dispute[s] involving [contractors who

were], for a variety of reasons, unable to competently perform.” Morse, 2008 S.D.

66, ¶ 29, 753 N.W.2d at 923 (Zinter, J., concurring). That is not the case here.

Lawrence’s actions go beyond the realm of a civil dispute, going so far as to become

fraudulent and thereby criminal. Lawrence clearly did not “believe what he caused

his victim to believe”: that his work would waterproof the basement and that FEMA

would reimburse Koster for the work. See id. ¶ 12, 753 N.W.2d at 919. There was

ample evidence from which the jury could draw this conclusion and therefore more

than sufficient evidence to prove the “intent to defraud” element. Based on this


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evidence, any rational trier of fact could have concluded beyond a reasonable doubt

that Lawrence was guilty of theft by deception.

[¶17.]         Affirmed.

[¶18.]         ZINTER and SEVERSON, Justices, concur.

[¶19.]         GILBERTSON, Chief Justice, concurs in result.

[¶20.]         MEIERHENRY, Justice, deeming herself disqualified, did not

participate.



GILBERTSON, Chief Justice (concurring in result).

[¶21.]         I agree with the Court that there was sufficient evidence presented at

trial to support a conviction for theft by deception in this case. However, I part

company with the Court in its attempts to distinguish State v. Jackson, 2009 S.D.

29, 765 N.W.2d 541, and State v. Morse, 2008 S.D. 66, 753 N.W.2d 915. Those cases

are indistinguishable from this case and for the reasons stated in my dissent in

those cases, both should have been affirmed.




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