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State v. Hauge

Supreme Court of South Dakota

July 24, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
KENNETH CRAIG HAUGE, Defendant and Appellant.



          JASON R. RAVNSBORG Attorney General QUINCY R. KJERSTAD Assistant Attorney General Attorneys for plaintiff and appellee.

          WANDA HOWEY-FOX of Harmelink & Fox Law Office, PLLC Attorneys for defendant and appellant.

          KERN, JUSTICE

         [¶1.] 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.

         Facts and Procedural History

         [¶2.] 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 nursing home.

         [¶3.] 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.

         [¶4.] 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.

         [¶6.] 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.

         [¶7.] 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.[1] 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.

         [¶8.] 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.

         [¶9.] 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.

         Analysis ...

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