Argued October 2, 2013.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON, Judge.
MARTY J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
ELLERY GREY, Grey Law, Rapid City, South Dakota, Attorneys for defendant and appellant.
SEVERSON, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and WILBUR, Justices, concur.
[¶1] Kenneth Dale Thomason, Jr. (Thomason) was convicted of Aggravated Grand Theft by Deception Over $100,000 and sentenced to 25 years in the South Dakota State Penitentiary. Thomason appeals arguing the trial court erred by: (1) refusing to grant his Motion for Judgment of Acquittal; (2) failing to instruct the jury regarding the defense of advice of counsel; and (3) instructing the jury that it could consider defendant's flight as it related to consciousness of guilt. There was insufficient evidence to prove that Thomason obtained the " property of another" worth over $100,000, therefore the circuit court erred by not granting Thomason's motion for judgment of acquittal. We reverse.
[¶2] In 2004, Thomason and his wife, Kim Thomason, purchased the Gold Town Hotel (Hotel) in Lead, South Dakota. Thomasons purchased the Hotel from Tamra Bennett (Bennett) by a contract for deed. In March 2005, Kim Thomason's mother Barbara Langlois (Langlois) began sending money to Thomasons. The transfers were understood to be loans.
[¶3] In December 2005, Bennett, who still held legal title to the property and business, threatened to reclaim the property if Thomasons did not pay a deficient amount by the end of December. Short on cash, Thomasons requested $50,000 from Langlois. Langlois agreed to a $50,000 loan. She drafted, without professional assistance, a quitclaim deed that she described as for security. No other document assigns or further defines a security interest. On December 8, 2005, Thomasons gave the signed quitclaim deed for the hotel (2005 quitclaim deed) to Langlois. Subsequently, on December 12, 2005, Langlois transferred $50,000 to Thomasons. Langlois testified that the quitclaim deed was to be used as a security interest alone, and that she never intended to file the deed. Langlois did not, at that time, file the deed. Thomasons continued to request loans from Langlois. With the loaned money, Thomasons made repairs and improvements to the Hotel.
[¶4] In 2006, Bennett stated that due to missed payments, the Hotel property was again subject to foreclosure. Langlois agreed to assist Thomasons by loaning them additional money. Langlois retained attorney Brad Schreiber (Schreiber) and an agreement was negotiated between Thomasons and Bennett. Ultimately, Langlois loaned Thomasons $328,133.01 to pay Bennett the remaining money due on the contract. Bennett delivered a warranty deed, dated September 27, 2006, naming Thomasons as grantees. Langlois was present during the negotiations and personally delivered the warranty deed to the Lawrence County Register of Deeds on December 11, 2006, even paying the filing fee.
[¶5] Eventually, the parties' relationship deteriorated. Langlois was frustrated that she was not receiving repayment for her loans. Poor record keeping contributed to the frustration as the amount ...