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02/26/92 STATE SOUTH DAKOTA v. GENE V. LODERMEIER

February 26, 1992

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
GENE V. LODERMEIER, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT. MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE RICHARD D. HURD Judge

Wuest, Miller, Henderson, Sabers, Amundson

The opinion of the court was delivered by: Wuest

WUEST, Justice

Appellant (Lodermeier) was indicted on four counts of grand theft by receiving, retaining, or disposing of stolen property and four counts of possessing personal property with the serial numbers removed. A part two information was also filed, charging Lodermeier with being an habitual offender. All four cases were joined into one trial. Lodermeier was convicted on six of the eight indicted charges. He then admitted his prior conviction and was adjudicated an habitual offender. Lodermeier was sentenced to forty-five years in prison. His motions for a new trial were denied. Lodermeier appeals his conviction. We affirm.

Lodermeier's convictions involve three articles of property, a Clark Model 642 Bobcat skid-steer loader (large Bobcat), a Model 116 John Deere garden tractor, and a Model M371 Melroe Bobcat (small Bobcat). Each is separately addressed.

1. Large Bobcat.

Steel Structures, a company in Aberdeen, South Dakota, owned a Clark Model 642 Bobcat. On the morning of July 2, 1984, employees discovered this large Bobcat missing from a construction site in Brookings. The loss was reported to police.

Plainly visible on the Bobcat were large black decals that said "Clark" and included the model number of the equipment, 642. Also, the Bobcat had a conspicuous serial number plate riveted to the back "fin" of the vehicle. The same serial number was stamped in the transmission housing frame of the machine. The Bobcat could also be identified by a unique serial number on its engine. Additionally, the Bobcat had hydrostatic transmission pumps on its sides. Serial numbers were also riveted on these pumps.

On November 29, 1987, this Bobcat was discovered by law enforcement officers in an alley behind Lodermeier's garage in Sioux Falls, South Dakota. The Bobcat's external serial number plate was missing. There also appeared to be scraping or scratch marks across the area where the plate had been. Portions of the rivets were protruding from the rivet holes. In addition, the model number decals had been removed or altered.

Sergeant Folkerts, Detective Prince and other officers served a search warrant, and recovered the Bobcat the next day. The Bobcat still had its hidden serial number, the same engine serial number, and the same numbers on its hydrostatic transmission pumps as it did when it had been manufactured. Lodermeier was charged with violating SDCL 22-30A-7 (1988) (receiving, retaining or disposing of stolen property) and SDCL 22-11-27 (1988) (possession of personal property with an altered or removed serial number).

The president of Steel Structures testified he did not give Lodermeier permission to use the Bobcat, nor to his knowledge had anyone else. In fact, the company had a policy against loaning equipment to others. Likewise, to his knowledge, no one had given Lodermeier permission to remove the serial numbers.

2. Lawn Tractor.

On July 6, 1984, Nelson Implement of Elk Point, South Dakota reported to law enforcement authorities that a Model 116 John Deere lawn tractor had been stolen from its lot. It could be identified by its unique serial number. The serial number was displayed on a metallic-looking serial number plate which was mounted with strong adhesive on the exterior of the tractor. The lawn tractor's engine also had a unique serial number. In addition, the lawn tractor had a unique number attached to the transaxle housing. This transaxle number was assigned to the specific Model 116 tractor owned by Nelson Implement.

On November 10, 1987, the lawn tractor was recovered from Lodermeier's driveway. The external conspicuous serial number had been scraped off the tractor. Its engine number was still in place as was the unique transaxle number. Based on the transaxle number, law enforcement officers determined the lawn tractor was the one which had been stolen from Nelson Implement.

Lodermeier was charged with violations of SDCL 22-30A-7 (receiving, retaining or disposing of stolen property) and SDCL 22-11-27 (possession of personal property with an altered or removed serial number). Mr. Nelson testified he had never authorized Lodermeier to use or possess this lawn tractor in any fashion or to remove or alter its serial numbers.

3. Small Bobcat.

Mark's Machinery of Yankton, South Dakota owned a 1976 Model M371 Melroe Bobcat which also had a unique serial number. The Bobcat was discovered missing on the morning of November 29, 1977. Its serial number was displayed on a metallic serial number plate that was attached by the manufacturer with four rivets to the left rear frame of the equipment. It also had an identical hidden serial number. The Bobcat's engine also had a unique number used for determining ownership. The engine's serial number was attached on a plate riveted to the engine.

The small Bobcat was discovered by patrol officers on the street in front of Lodermeier's residence on March 25, 1988. Officers discovered the Bobcat's conspicuous, externally mounted serial number plate had been removed and rivet holes or damaged rivets remained. The engine's number plate had also been removed. The hidden engraved serial number was still in place.

Lodermeier was charged with violations of SDCL 22-30A-7 (receiving, retaining or disposing of stolen property) and SDCL 22-11-27 (possession of property with an altered or removed serial number). Mark Hunhoff, the owner and operator of Mark's Machinery, testified he had not given Lodermeier permission either to take the Bobcat or to remove its serial numbers. Nor, to his knowledge, had anyone else.

Lodermeier was convicted of three counts of receiving, retaining or disposing of stolen property in violation of SDCL 22-30A-7 and three counts of possession of property with an altered or removed serial number in violation of SDCL 22-11-27. He appeals *fn1 raising five issues:

(1) Whether the three indictments charging possession of stolen property with the serial numbers removed were defective because they failed to allege the removal was done "without the consent of the owner."

(2) Whether the crimes of retaining the stolen small Bobcat and possessing the small Bobcat with its serial numbers removed were continuous in nature and therefore not barred by the statute of limitations.

(3) Whether the trial court erred in refusing to suppress the stolen items as evidence obtained in violation of Lodermeier's fourth amendment rights.

(4) Whether the trial court improperly admitted evidence of Lodermeier's previous felony conviction of transporting stolen property.

(5) Whether the trial court erred in refusing to instruct the jury that it must find someone other than Lodermeier had stolen the property before it could find him guilty of receiving or possessing stolen property.

(6) Whether the trial court improperly denied Lodermeier's motion for a new trial based upon the State's failure to disclose the name of a confidential informant and based upon newly discovered evidence.

We will discuss each issue seriatim and will develop further facts pertinent to each issue.

I.

Lodermeier was charged with three counts of knowingly possessing property from which a serial number had been removed, in violation of SDCL 22-11-27 which provides:

Any person who, without consent of the owner, intentionally alters, obliterates or removes a serial number or other identifying mark on personal property, or knowingly possesses any personal property having a serial number or identifying mark which has been intentionally obliterated, altered, or removed, which number or marking may be used to determine ownership thereof, is guilty of a Class 6 felony.

(Emphasis added). The indictments with which Lodermeier was charged failed to allege the serial numbers had been removed without the owner's consent.

"An indictment which does not contain all the essential elements of the offense charged is defective . . . ." State v. Stone, 467 N.W.2d 905, 907 (S.D. 1991). However, we have held failure to set out an essential element of an offense in the charging instrument is not always fatal. State v. Swallow, 350 N.W.2d 606, 609 (S.D. 1984). "'The defect is cured if the information sets forth the proper statute, the jury instructions set forth all the essential elements of the offense, and the State proves all the essential elements at trial.'" Stone, 467 N.W.2d at 907 (quoting Swallow, 350 N.W.2d at 609). Accord State v. Williams, 297 N.W.2d 491, 493 (S.D. 1980); State v. Larson, 294 N.W.2d 801, 802 (S.D. 1980).

The indictment set forth the applicable statute. That Lodermeier was adequately informed of the charges against him was aptly demonstrated by his pretrial motion to dismiss the indictment for failing to set out all the essential elements, which motion was denied. In addition, the State presented testimony of the property owners to the effect that they had not given permission to anyone to remove the serial numbers. We believe sufficient evidence was presented on the consent issue for the jury to find the property owners had not given their consent.

The crux of this issue then is whether the jury instructions adequately apprised the jury of the consent element, thereby fully curing the defective indictment. The insufficiency of the indictment was brought to the trial court's attention. When the Judge set out the charging language of the indictments he quoted them verbatim. However, in his general instructions, he specifically instructed the jury that before the defendant could be found guilty on any of the three counts charged under the provisions of SDCL 22-11-27, the State must prove the prohibited acts were done "without the consent of the owner." Both attorneys, in their closing arguments, informed the jury lack of consent was an element the State was required to prove. Finally, there is no indication that the jury was confused regarding the consent issue. No interrogatories were sent by it to the Judge about the issue.

"We review the jury instructions by construing them together and the instructions are not erroneous if when so construed they provide a full and correct statement of the law applicable to the case at bar." Frazier v. Norton, 334 N.W.2d 865, 870 (S.D. 1983). Accord State v. Grey Owl, 295 N.W.2d 748, 751 (S.D. 1980). "They are not erroneous because the particular taken alone may not have embodied all the law applicable." Dwyer v. Christensen, 77 S.D. 381, 390, 92 N.W.2d 199, 204 (1958). We find the ...


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