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State of South Dakota v. Mark Iwan D/B/A Belvidere Store

December 8, 2010

STATE OF SOUTH DAKOTA,
PLAINTIFF AND APPELLEE,
v.
MARK IWAN D/B/A BELVIDERE STORE, DEFENDANT AND APPELLANT.



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

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

-rev & rem-JKK

CONSIDERED ON BRIEFS ON OCTOBER 4, 2010

[¶1.] Defendant was convicted in Hutchinson County of grand theft by passing an insufficient funds check in Jackson County. His motion to dismiss for lack of proper venue was denied because the circuit court reasoned that the ultimate recipient of the check was in Hutchinson County. On appeal, we conclude that the acts constituting the offense occurred in Jackson County, and therefore, the case should have been dismissed for lack of proper venue.

Background

[¶2.] Mark Iwan owns and operates Belvidere Store in Belvidere, Jackson County, South Dakota. Based in Hutchinson County, Stern Oil Company distributes motor vehicle fuel to gas stations and convenience stores, including Belvidere Store. Iwan bought fuel on credit, but when his unpaid balance reached $145,000, Stern Oil decided to deal with him by cash-on-delivery (COD). Accordingly, Stern Oil directed its driver, Jim Lindholm, to deliver fuel to Iwan only on that basis.

[¶3.] After Iwan called Stern Oil and requested a fuel delivery, Lindholm arrived in Belvidere on April 12, 2008 to deliver the fuel. Lindholm told Iwan that he could not make the delivery unless Iwan paid for it. Iwan wrote a check, and Lindholm delivered the fuel. When Lindholm finished, Iwan handed Lindholm a sealed envelope and explained that the check for the fuel was inside as well as several other checks for payment to Stern Oil. Lindholm returned to his work site in Rapid City, placed Iwan's sealed envelope in another envelope, applied postage, and mailed it to Stern Oil.

[¶4.] Stern Oil received the envelope and deposited the $26,000 check immediately. It was later returned for insufficient funds, and Iwan never covered it. Iwan was charged with one count of grand theft by insufficient funds check in violation of SDCL 22-30A-17 and SDCL 22-30A-24.

[¶5.] Through every stage of the proceedings, Iwan challenged venue in Hutchinson County. But the circuit court ruled that although Iwan handed the check over in Jackson County, Iwan knew it would be mailed to Stern Oil, and thus, sufficient evidence supported venue in Hutchinson County. The court further held that venue is a question for the finder of fact and, "[t]herefore, the court cannot rule on the appropriateness of venue."

[¶6.] During the settling of jury instructions, Iwan objected to two venue instructions. The first instruction:

When a public offense is committed partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense occur in two or more counties, the venue is in either county.

See SDCL 23A-16-8. The second instruction:

Where the commission of a public offense involves the use of the mails, the venue of the offense is in any county where the letter is deposited or delivered, or where it is received by the person to whom it is addressed.

See SDCL 23A-16-14. The court overruled Iwan's objections. [ΒΆ7.] The jury returned a guilty verdict. Iwan appeals, asserting that the court erred in failing to grant a judgment of acquittal for lack of venue and in instructing the jury on venue. Iwan also argues that the State failed to prove the check was passed ...


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