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State v. Thomason

Supreme Court of South Dakota

November 18, 2015

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KENNETH DALE THOMASON a/k/a KENNETH D. THOMASON JR., Defendant and Appellant

Argued September 1, 2015.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. THE HONORABLE RANDALL L. MACY, Judge.

MARTY J. JACKLEY, Attorney General, CAROLINE SRSTKA, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ELLERY GREY, Grey Law Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.

OPINION

Page 71

WILBUR, Justice

[¶1] After this Court vacated defendant's conviction of aggravated theft by deception, the State brought new charges against defendant for forgery and offering false or forged instruments for filing, registering, or recording in a public office. Defendant moved to dismiss the charges asserting that double jeopardy, collateral estoppel, and res judicata barred the State's successive prosecution. Defendant further asserted that the indictment should be dismissed for improper venue. The circuit court denied defendant's motion to dismiss, and a jury found defendant guilty of all charges. Defendant appeals. We affirm.

Background

[¶2] In 2014, this Court vacated Kenneth Dale Thomason Jr.'s (Ken) conviction of aggravated theft by deception. State v. Thomason, 2014 S.D. 18, 845 N.W.2d 640. We held that the State failed to prove all the elements of the offense. Id. ¶ 30. After we vacated his conviction, the State charged Ken with two counts of forgery in violation of SDCL 22-39-36 and SDCL 22-3-3 (aid and abet), and two counts of offering false or forged instruments " for filing, registering, or recording in a public office" in violation of SDCL 22-11-28.1 and SDCL 22-3-3 (aid and abet). Ken moved the circuit court to dismiss the charges. He asserted that double jeopardy, collateral estoppel, and res judicata barred the State's subsequent prosecution of him because the State had a full and fair opportunity to litigate the newly-indicted charges during the first trial. Ken also moved to dismiss the indictment for improper venue. The circuit court denied Ken's motion to dismiss. During a jury trial in October 2014, the State presented much of the same evidence and testimony it had presented during the first trial. See Thomason, 2014 S.D. 18, 845 N.W.2d 640.

[¶3] In the second trial, the State presented evidence that Ken and his wife Kim purchased the Gold Town Hotel in Lead, South Dakota on a contract for deed in 2004. Kim's mother, Barbara Langlois, testified that she loaned Ken and Kim money for a down payment on the contract. In exchange for the loan, Ken and Kim gave Barbara a quitclaim deed to the

Page 72

Hotel. Barbara did not file the deed immediately. She, however, continued to loan Ken and Kim money for the Hotel. Barbara testified that she loaned them $328,133.01 in September 2006 because Ken and Kim were facing foreclosure on the Hotel. She claimed that in total she loaned Ken and Kim approximately $500,000.

[¶4] According to Barbara, she " got mad" because Ken and Kim were not paying on their loans. She explained that she contacted her attorney Brad Schreiber to assist in recovering money from Ken and Kim. Schreiber testified that he advised Barbara to file her 2005 quitclaim deed and serve an eviction notice on Ken and Kim. Barbara filed the quitclaim deed in November 2007 and served Ken and Kim an eviction notice. Thereafter, Schreiber assisted Ken, Kim, and Barbara in arriving at an agreement related to the debt.

[¶5] On January 7, 2008, the parties signed a " Letter of Intent/Agreement." The letter explained that it was intended " to memorialize numerous emails, telephone conversations and correspondence concerning the [Hotel] and the debt due and owing to Barbara Langlois." The letter noted that Ken was set to close on a loan for $350,000 on January 9, 2008, but that Barbara's recently-recorded 2005 quitclaim deed could impact that loan. Schreiber testified that Ken refused to say where the loan was coming from because Ken believed Barbara might interfere. Nonetheless, the Letter of Intent/Agreement set forth that, following the loan closing and no later than January 14, 2008, Ken and Kim would pay Barbara $200,000 as partial payment on the debt due and owing. Ken and Kim also agreed to " enter into and execute a promissory note and mortgage in favor of Barbara Langlois in an amount not less than $300,000[.]" In exchange for Ken and Kim executing the agreement, Barbara would provide Ken and Kim a quitclaim deed conveying to them all her interest in the Hotel.

[¶6] The parties signed the Letter of Intent/Agreement, and Schreiber testified that he gave Ken a quitclaim deed. Although Barbara conveyed her interest in the Hotel to Ken and Kim, she also conveyed an equal interest to Ken's son, Kenneth Dale Thomason, III (Dale). Barbara testified that she included Dale within the conveyance because she wanted Dale to be part owner of the Hotel. Schreiber testified that, by including Dale on the deed, Ken and Kim would not be able to sell the Hotel unless all three parties--Ken, Kim, and Dale--signed off on the conveyance.

[¶7] On January 14, 2008, Ken did not remit payment of $200,000 to Barbara. Rather, Ken emailed Schreiber and informed him the money would come in a week. Schreiber claimed that Ken told him that he was able to close on the loan. When payment did not arrive in a week, Schreiber attempted to contact Ken. Schreiber learned that Ken and Kim had left the country and were in the Dominican Republic. This concerned Schreiber and he decided to conduct a title search on the Hotel. Through Lawrence Title Company, Schreiber learned that " there [were] some strange things going on." He received a copy of a joint warranty deed that conveyed the Hotel to a " Chris and Shalece Vinson" and a " Special Power of Attorney" instrument appointing Ken and Kim as Dale's attorney-in-fact to execute legal documents related to the Hotel. Schreiber testified that the joint warranty deed bore the signature of " Kenneth Dale Thomason, III" with a " POA" notation. Schreiber relayed this information to Barbara.

[¶8] Unable to contact Ken and Kim, Barbara filed a complaint with the Lead Police Department. On May 1, 2008, a Lawrence ...


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