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State v. Podzimek

February 24, 2010

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
GARY J. PODZIMEK, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BON HOMME COUNTY, SOUTH DAKOTA HONORABLE GLEN W. ENG Judge.

The opinion of the court was delivered by: Meierhenry, Justice

CONSIDERED ON BRIEFS ON JANUARY 11, 2010

[¶1.] After Gary J. Podzimek defaulted on a loan to the Community Bank of Avon (Bank), the State charged him with grand theft for violating SDCL 22-30A-3. Podzimek claimed that the State failed to prove the elements of the crime and moved for a directed verdict. The circuit court denied the motion and submitted the case to the jury. The jury found Podzimek guilty of grand theft by deception. Podzimek appeals.

FACTS AND BACKGROUND

[¶2.] Podzimek owned and operated a vehicle repair business in Tripp, South Dakota, from the late 1970s until 2006. In approximately 1980, Podzimek began a business relationship with the Bank. Several years later, the Bank began providing Podzimek with a business loan so he could keep an inventory of used cars to sell. As security for its loan, the Bank had Podzimek sign a note and security agreement giving it an interest in the vehicles Podzimek kept in his inventory. Under this agreement, the Bank would inspect Podzimek's lot twice a year to verify inventory. Podzimek was also required to provide a list of inventory that was to include the vehicles on the lot and the parts associated with the repair business. The Bank and Podzimek maintained a working relationship under this arrangement for approximately eleven years.

[¶3.] In 2005, Podzimek's business began to experience difficulties. In June 2005, Podzimek signed his last note to the Bank renewing the obligation he previously owed for the loans that remained outstanding. Podzimek did not receive any additional money when renewing his obligation. In October 2005, the last semiannual site inspection took place, and nineteen vehicles were counted in inventory. This count matched the inventory total provided by Podzimek. Communication began to break down between Podzimek and the Bank, however, as Podzimek struggled to make payments on his loan. The Bank's attempts to communicate with Podzimek to negotiate a resolution were not successful. Eventually, Podzimek's loans became delinquent.

[¶4.] In March 2006, the Bank initiated civil proceedings against Podzimek. In May 2006, the Bank won a civil judgment for the amount Podzimek owed on the loan. In August 2006, the Bank carried out a levy on Podzimek's business. Upon inspecting the assets, the Bank found six vehicles in inventory. The other vehicles that appeared on the October 2005 inventory could not be located. Subsequently, the State charged Podzimek with theft by deception under SDCL 22-30A-3 based on the unaccounted for vehicles. At trial, Podzimek made a motion for a directed verdict at the conclusion of the State's case-in-chief and again at the end of his case- in-chief. Podzimek claimed that to "constitute the crime of grand theft, no matter what the theory, as the Indictment indicates, it has to be property of another." Podzimek argued the State failed to show that he took the property of another as defined by SDCL 22-1-2(36). The circuit court denied both motions, and Podzimek was found guilty of grand theft by deception. Podzimek appeals.

ISSUE

[¶5.] The issue before this Court is whether the circuit court erred by denying Podzimek's motions for a directed verdict when the State did not prove that he obtained the property of another.

STANDARD OF REVIEW

[¶6.] The standard of review for a circuit court's ruling on a motion for a judgment of acquittal, formerly referred to as a motion for a directed verdict,*fn1 is well-settled:

The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo. We must decide anew whether the evidence was sufficient to sustain a conviction. In measuring evidentiary sufficiency, we ask "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."

State v. Klaudt, 2009 SD 71, ¶14, 772 NW2d 117, 122 (citing State v. Tofani, 2006 SD 63, ¶24, 719 NW2d 391, 398 (quoting State v. Disanto, 2004 SD 112, ¶14, 688 ...


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