CONSIDERED ON BRIEFS ON APRIL 29, 2019
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON
COUNTY, SOUTH DAKOTA THE HONORABLE CHRIS GILES Judge
R. RAVNSBORG Attorney General QUINCY R. KJERSTAD Assistant
Attorney General Attorneys for plaintiff and appellee.
HOWEY-FOX of Harmelink & Fox Law Office, PLLC Attorneys
for defendant and appellant.
Kenneth Hauge (Hauge) appeals his conviction for theft by
exploitation in an amount exceeding $5, 000. He alleges the
circuit court erred by: (1) violating his rights under the
Sixth Amendment; (2) denying his motion for a judgment of
acquittal; (3) erroneously calculating his restitution order;
and (4) imposing a sentence that violates the Eighth
Amendment's prohibition against cruel and unusual
punishment. We affirm.
and Procedural History
On June 6, 2017, Joan Hauge, an 89-year-old woman suffering
from dementia, fell off her couch at home and could not get
back up. After finding her on the floor, Joan's
granddaughter, Marie Hauge, called an ambulance. Joan was
admitted to the emergency room of a nearby hospital where she
informed her doctors she could "still jump rope and walk
to town every day." In reality, Joan's deteriorating
physical and mental health prevented her from engaging in
much of any physical activity. Ambulance personnel reported
finding her in "complete filth," covered in human
waste, and in a house not currently "fit for
living." The medical professionals who examined her
determined that she was unable to care for herself and was
not receiving proper care at home. After the incident,
Joan's son and primary caregiver, Hauge, discussed with
his daughter, Marie, whether they could continue to care for
Joan at home. They ultimately decided to place her in a
Approximately a month prior to Joan's fall, Hauge had
obtained paperwork to appoint himself as Joan's power of
attorney (POA) with Marie as the successor or alternative
agent. The language of the POA did not authorize Hauge to
engage in self-dealing. Three days after accepting his role
as Joan's POA, Hauge went to the Community Bank of Avon
and spoke with Lisa Einrem, an employee of the bank. He
directed Einrem to remove his brother's name from
Joan's account and create a joint account under his and
Joan's names. He then withdrew $6, 000, and, of that
amount, he deposited $5, 500 into his own bank account and
took $500 in cash.
In June and July of 2017, Hauge or Marie acting under
Hauge's instruction, deposited several bonds at Security
State Bank. After the bonds were deposited, Hauge
intermittently requested cash withdrawals, which he received.
On July 3, he discovered that Joan owned a certificate of
deposit (CD) that had matured at Security State Bank worth
$30, 359.29. Marie suggested that Hauge use these funds to
pay Joan's nursing home bill, which was over $14, 000 at
that time, and save the remaining funds for her future care.
Hauge agreed and told Marie that he had opened an account at
Palace City Federal Credit Union in Joan's name for this
purpose. However, instead of doing so, Hauge cashed in the CD
and had Security State Bank give him the funds in the form of
a cashier's check, which he deposited in his account. He
made a payment to the nursing home in the amount of $14, 025
on July 4, 2017, [¶5.] At the end of July, Marie, who is
also an accountant, suspected that Hauge was violating his
fiduciary duties as Joan's POA. After filing a complaint
with the Department of Social Services, Marie was referred to
the Attorney General's Office, who referred the case to
the South Dakota Department of Criminal Investigation. On
August 1, 2017, Marie removed Hauge as POA and assumed the
role herself. According to Hauge, he was never notified of
his removal as Joan's POA. Hauge made a second payment to
the nursing home for $8, 000 on August 31, 2017, leaving the
remaining $8, 429.29 from the CD in his account.
Hauge was interviewed by Special Agent Neuharth on September
13, 2017. During the interview, he made a number of
incriminating statements. A month later, the Hanson County
Grand Jury indicted Hauge for theft by exploitation, a class
4 felony. The indictment alleged he committed the offense
between May 1, 2017 and September 1, 2017.
At his arraignment, Hauge waived his right to court-appointed
counsel but later accepted the court's decision to
appoint advisory counsel to assist him with his
case. The circuit court entered an order to that
effect on January 18, 2018. The case was tried to a jury in
March of 2018. Throughout the trial, Hauge and his advisory
counsel questioned witnesses and addressed the jury with
Hauge making the opening statement and both addressing the
jury during Hauge's closing argument. At the close of the
State's case, with the assistance of his advisory
counsel, Hauge moved for a judgment of acquittal. The court
denied his motion. Hauge then took the stand as part of his
case-in-chief and made several incriminating statements when
cross-examined by the State. At the close of the evidence,
the jury returned a guilty verdict.
Hauge entered an admission to a part II information alleging
that he was a habitual offender. Having been convicted of one
prior felony, the maximum sentence Hauge could receive was
enhanced to that of a class 3 felony. At sentencing, after
considering the testimony and exhibits presented, the circuit
court imposed a fifteen-year penitentiary sentence with five
years suspended on the condition that Hauge pay restitution
in the amount of $31, 743.82.
Hauge appeals, raising four issues for our review, which we
restate and reorder as follows:
1. Whether Hauge's Sixth Amendment rights were violated.
2. Whether the circuit court erred by denying Hauge's
motion for judgment of acquittal.
3. Whether the circuit court erred in ordering Hauge to pay
$31, 743.82 in restitution.
4. Whether Hauge's sentence was cruel and unusual.