#28993-r-PJD
2021 S.D. 2
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ROBERT SUCHOR, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
…
THE HONORABLE MICHELLE K. COMER
Judge
…
JASON R. RAVNSBORG
Attorney General
MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
PAUL J. ANDREWS
Rapid City, South Dakota Attorney for defendant
and appellant.
…
CONSIDERED ON BRIEFS
MAY 26, 2020
OPINION FILED 01/06/21
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DEVANEY, Justice
[¶1.] Robert Suchor appeals the jury’s verdict finding him guilty of three
counts of grand theft by misappropriation of funds by a contractor. He asserts that
the State failed to present sufficient evidence on one or more essential elements,
and therefore, the circuit court erred in denying his motion for judgment of
acquittal on each conviction. We reverse all three convictions.
Factual and Procedural Background
[¶2.] Robert Suchor is a contractor from Pine Haven, Wyoming. He owned
and operated New Wave Builders, and as discussed below, in 2016, he entered into
three separate contracts to construct homes for three families in Spearfish, South
Dakota.
The Dahl Project
[¶3.] In April 2016, Carole and Dennis Dahl met Suchor through their
realtor, Sandy Donahue. After multiple meetings, the Dahls and Suchor executed a
contract on November 30, 2016, for Suchor to build the Dahls’ home for $250,000.
The contract provided that the Dahls were to pay Suchor $25,000 upon signing the
contract. The contract further provided that Suchor would finish the concrete
foundation and interior flatwork within 30 days after receiving the first contract
payment.
[¶4.] The Dahls paid Suchor $25,000 on December 1, 2016. However,
construction on the home did not begin as planned, 1 and after the Dahls learned
1. According to Suchor, he could not begin digging for the foundation because
the ground was frozen. The contract provided for delays due to extreme
(continued . . .)
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that Suchor had yet to obtain a building permit, the Dahls terminated their contract
with Suchor on December 16. They requested he return the $25,000, but Suchor
refused, indicating he had spent approximately 104 hours on the project (arguably
worth $10,400) and had purchased Styrofoam foundation forms. Ultimately, the
Dahls filed a civil suit against Suchor, which was stayed pending the resolution of
this criminal proceeding.
The Pavich Project
[¶5.] Frank and Kit Pavich wanted to build and thereafter sell for profit
what they called a “spec-house.” Sandy Donahue also introduced the Paviches to
Suchor, and on July 13, 2016, the parties executed a contract whereby Suchor would
build the spec-house for $332,000. Under the contract, Suchor was to be issued
progress payments, and the disbursements to Suchor were to be processed through
Black Hills Land and Title. Shortly after Suchor began work on the project, the
Paviches decided to make the spec-house their personal residence. As a result,
multiple changes were made to the construction plans. Rather than execute a new
contract, the parties agreed that the Paviches would pay for any upgrades or extras.
[¶6.] It is undisputed that over the course of the project, Suchor and Frank
Pavich’s relationship deteriorated. Eventually the parties could no longer work
together, and on May 27, 2017, before the project was finished, Suchor stopped
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(. . . continued)
weather and required the contractor to notify the owner of such. Suchor sent
Carole Dahl a text message on December 12, 2016, explaining he could not
“open a hole” until the weather breaks, and indicating that he “hoped” he
would be able to do so “around the holidays.” Carole responded, “We
understand” and “thanks for checking in.”
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working on it. By that time, according to Pavich, he had paid Suchor $329,000 of
the $332,000 contract price and had also spent $99,000 on the change orders and
upgrades. The record is not clear as to how much of this $99,000 was initially
expended by Suchor and then reimbursed by Pavich, or whether some of these
expenses were paid directly by Pavich after Suchor stopped working on the project.
[¶7.] Pavich testified that after Suchor left the job, he learned that Suchor
had not paid an invoice from Wires R Us for $16,681.66 for electrical work done on
the project. Suchor maintained that he did not pay this bill because Pavich still
owed him money on the project, and also because he had reached an agreement
with Pavich when they parted ways as to how the remaining bills would be handled.
Ultimately, Pavich paid Wires R Us $20,852.07 in December 2017, which, according
to Pavich, was the total amount due after all the electrical work on the contract had
been finished.
The Feeser Project
[¶8.] On July 29, 2016, Justin and Kristen Feeser entered into a contract
with Suchor for the construction of a home for $385,000. The contract required that
the home be constructed by the end of November 2016. The evidence presented at
trial revealed that Suchor’s work on this project was fraught with issues. 2 Feeser
2. For example, Suchor did not start construction on the Feeser project until
September 2016 because he was busy with other jobs. When he did start and
poured the concrete footings, his work did not pass City inspection due to the
discovery of excess backfill on the lot that was not suitable for a foundation.
In order to remedy the problem, Suchor had to remove the footings, excavate
down to the native soil, and repour the concrete. This set the project
timeframe back three months, and according to Suchor, he personally spent
(continued . . .)
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eventually became so frustrated with Suchor’s work that in July 2017, Feeser
offered to sell Suchor the unfinished house. Suchor agreed; however, he could not
obtain financing. The Feesers then agreed, at Suchor’s suggestion, to sell the house
to Suchor’s brother. Before the scheduled closing, Feeser learned that an
outstanding balance was owed to J&M Drywall for $13,184. Feeser asked Suchor
about this bill on August 9, 2017, the day before the scheduled closing, and
according to Feeser, Suchor confirmed that J&M Drywall had been paid in full.
[¶9.] Suchor later explained that he had planned to pay J&M Drywall the
amount due with funds Feeser had agreed to pay him at closing. Based on this
understanding, Suchor had given J&M Drywall a check that same day (August 9)
for the balance due, but after the closing did not occur as planned, Suchor’s check
bounced. Ultimately, the sale fell through, and Feeser fired Suchor on August 19,
2017. According to Feeser, he had paid Suchor $330,000 of the $385,000 due under
the contract. Feeser later learned that the check Suchor issued to J&M Drywall
had bounced, and on September 29, 2017, Feeser paid J&M Drywall the
outstanding invoice balance. Feeser then brought a civil suit against Suchor, which
at the time of the criminal trial, was in arbitration.
The Criminal Case
[¶10.] Meanwhile, on July 11, 2017, Frank Pavich filed a complaint with the
Spearfish Police Department, claiming that he gave Suchor money to pay Wires R
Us but Suchor did not remit payment. During the investigation, Detective Jason De
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(. . . continued)
an additional $40,000 to remedy the problem. The concrete work was not
finished until January 2017.
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Neui received additional complaints about Suchor from the Dahls and the Feesers.
On September 12, 2017, Detective De Neui discussed the homeowners’ concerns
with Suchor in a recorded telephone call. Suchor denied any wrongdoing, and later
provided the detective a detailed memo responding to the various complaints by the
homeowners.
[¶11.] On September 20, 2017, a grand jury indicted Suchor on three counts
of grand theft by misappropriation of funds by a contractor. On October 17, 2018,
the grand jury issued a superseding indictment alleging, in addition to the same
three counts of misappropriation of funds by a contractor as to each project, three
alternative counts of grand theft by deception and two alternative counts of grand
theft by embezzlement as to the Dahl and Pavich projects. Suchor pled not guilty,
and the case proceeded to a jury trial on February 19 through February 22, 2019.
[¶12.] At trial, the State presented testimony from Carole Dahl, Frank
Pavich, and Justin Feeser. The State also presented testimony from Spearfish
building official Tom Paisley, real estate agent Donahue, a representative from
Wires R Us, and a past employee of Suchor’s. After the State rested, Suchor moved
for judgment of acquittal on all charges. The circuit court granted the motion on the
alternative count of grand theft by deception related to the Dahl project and denied
the motion as to all remaining charges. 3 However, the court expressed
“reservations” about the remaining grand theft by deception and embezzlement
3. The court’s dismissal of the theft by deception count was based on our ruling
in State v. Morse, 2008 S.D. 66,
753 N.W.2d 915 and the court’s finding that
the State had not presented any evidence showing Suchor had an intent to
defraud the Dahls at the time he received their payment.
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counts, noting “there’s very little evidence that there was a specific intent to
defraud . . . .”
[¶13.] Thereafter, Suchor testified in his defense. He acknowledged that he
received $25,000 from the Dahls and did not pour their concrete foundation, but he
noted that the 30-day timeframe for completing this phase had not yet expired
when he was fired and pointed to provisions in the contract allowing for delays due
to weather conditions. He testified that he did not return the money because he had
incurred expenses in preparing to begin construction on the Dahl project. As to the
Pavich project, Suchor testified that he did not pay the outstanding balance on the
Wires R Us invoice because Pavich owed him money on the contract for services
performed. In regard to the Feeser project, Suchor testified that he had intended on
paying the drywall bill from the proceeds of the closing on the sale of the Feeser
house to his brother, but when that sale did not occur, he did not have the funds to
pay the bill. Suchor testified that he did not thereafter pay the remaining drywall
balance because the Feesers owed him over $13,000 for other services performed.
[¶14.] After Suchor testified, the circuit court reconsidered Suchor’s motion
for judgment of acquittal on the remaining counts and granted the motion as to all
the alternative theft counts related to each of the three projects. 4 Only the three
4. The circuit court dismissed the theft by deception counts relying on our
decisions in Morse, 2008 S.D. 66,
753 N.W.2d 915, and State v. Jackson,
2009
S.D. 29,
765 N.W.2d 541, and finding the State had offered no evidence that
Suchor had an “intent to defraud at the inception” of these other contracts.
In dismissing the embezzlement counts, the court relied on Commercial
National Bank of Sturgis v. Smith, 60 S.D. 376,
244 N.W. 521 (1932)
(addressing a former version of the contractor theft statute), for the
(continued . . .)
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counts alleging grand theft by misappropriation of funds by a contractor were
submitted to the jury, and the jury found Suchor guilty on all three counts. In a
post-trial brief, Suchor renewed his motion for judgment of acquittal, which the
circuit court denied. The court sentenced Suchor to ten years in the penitentiary on
each count to run concurrently, all suspended on conditions including that Suchor
pay restitution to all the homeowners. Suchor appeals, asserting that the circuit
court erred in denying his motion for judgment of acquittal.
Standard of Review
[¶15.] We review a denial of a motion for judgment of acquittal de novo.
State v. Ware, 2020 S.D. 20, ¶ 12,
942 N.W.2d 269, 272. In doing so, we determine
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Martin,
2015 S.D. 2, ¶ 13,
859 N.W.2d 600,
606 (quoting State v. Brende,
2013 S.D. 56, ¶ 21,
835 N.W.2d 131, 140). “[W]e
accept the evidence and the most favorable inferences fairly drawn therefrom,
which will support the verdict.” State v. Brim,
2010 S.D. 74, ¶ 6,
789 N.W.2d 80, 83
(quoting State v. Jensen,
2007 S.D. 76, ¶ 7,
737 N.W.2d 285, 288). “This Court will
not resolve conflicts in the evidence, assess the credibility of witnesses, or evaluate
the weight of the evidence.”
Id. (citation omitted).
________________________
(. . . continued)
proposition that money received by a contractor on a contract is not held in
an actual or constructive trust but rather is “his own money which he can
then use to pay himself or other contractors.”
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Analysis and Decision
[¶16.] Under SDCL 44-9-13, theft by misappropriation of funds by a
contractor occurs when:
[a]ny contractor . . . on any improvement of real estate, . . . who
knowingly uses more than five hundred dollars of the proceeds
of any payment made to him on account of such improvement by
the owner of such real estate or person having the improvement
made, for any other purpose than the payment for labor, skill,
materials, and machinery contributed to such improvement
while any account for such labor, skill, material, or machinery
furnished for such improvement up to the time of such payment
remains unpaid and due and owing under the credit terms
arranged . . . .
This statute is located in the chapter of the code pertaining to mechanics’ and
materialmen’s liens. See SDCL ch. 44-9. Grand theft is defined in SDCL 22-30A-17
and, relevant to the verdict here, is established when the value of the property
stolen is more than $5,000 in value but less than or equal to $100,000.
[¶17.] We have not before examined SDCL 44-9-13 or addressed what
evidence is necessary to sustain a conviction under this statute. Suchor contends
this statute requires a payment specified for a particular purpose and evidence that
the contractor did not ultimately use the payment for such purpose. We disagree.
Nothing in the language of the statute requires such a direct connection between
monies paid and accounts due. 5 Rather, the statute refers to the use of more than
5. The circuit court appeared to have acknowledged this general concept when it
instructed the jury that “it is not a violation for a Contractor to pay himself
for his services in connection with the improvement of the real estate in
question.” This instruction comports with the terms of the statute because
under SDCL 44-9-13, so long as the homeowner’s payments are generally
applied to the project itself, there is no crime associated with a failure to
apply proceeds of any payment toward a particular bill.
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$500 of the proceeds of any payment for the improvement of real estate for any
purpose other than labor, skill, materials, or machinery contributed to the
improvement. Further, the phrase “up to the time of such payment” requires that
labor, skill, or materials giving rise to an unpaid bill must have already been
furnished at the time the homeowner made the payment to the contractor. If the
contractor then knowingly uses at least $500 from such payment for a purpose not
related to the project while an unpaid bill for such items furnished is due and owing
under the credit terms arranged, the crime defined in SDCL 44-9-13 has been
committed.
[¶18.] Suchor’s further arguments more pointedly address the proper
interpretation of the statute as outlined above. He contends the State failed to
prove one or more necessary elements to sustain each conviction beyond a
reasonable doubt. In particular, Suchor highlights that under the contracts at
issue, he was to receive “milestone” payments corresponding to the completion of
different phases of the construction projects. He then claims that by structuring his
contracts in this manner, he “had built in allowances for project costs, overhead and
profit into each scheduled milestone payment.” Thus, in his view, absent evidence
establishing where he spent the payments when accounts were due and owing, the
State could not prove each element of theft by misappropriation beyond a
reasonable doubt. Because each count on which Suchor was convicted concerns a
different construction project, we examine the sufficiency of the evidence in regard
to each project separately.
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The Dahl Project
[¶19.] Suchor contends that the State presented no evidence that any account
for labor, skill, material, or machinery was unpaid and owing at the time the Dahls
paid Suchor $25,000. He emphasizes that no subcontractors had been hired and no
amounts were owed on account of labor, skill, materials, or machinery furnished to
the Dahl project. The State responds that because Suchor was required to obtain a
building permit before he could start construction, the permit fees are “sums of
money [Suchor] owed when he took, and refused to return, the Dahls’ $25,000.00.”
The State further claims the jury could infer that Suchor owed money to
subcontractors who were preparing to work on the Dahl project because after he
was fired, Suchor issued a letter to the Dahls’ attorney indicating that he had
already scheduled his subcontractors and may be liable to them and to real estate
agent Donahue for a referral fee.
[¶20.] However, a review of the record in a light most favorable to the verdict
reveals no evidence to support that at the time the Dahls paid Suchor, or any time
thereafter, “any account for such labor, skill, material, or machinery furnished for
such improvement” was “unpaid and due and owing under the credit terms
arranged . . . .” See SDCL 44-9-13. First, Suchor never obtained a building permit;
therefore, no monies were due to the City of Spearfish. Second, regardless of
Suchor’s representations in his letter to the Dahls’ attorney, it is undisputed that no
monies were due to any subcontractors. Third, Donahue specifically testified that
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she was not owed any money from Suchor connected to the Dahl project. 6 Even if
Donahue had been owed a referral fee, her services would not constitute “labor,
skill, material, or machinery furnished” for the “improvement of real estate[.]”
Because the State did not present any evidence on an essential element of the
offense, the circuit court erred in denying Suchor’s motion for judgment of acquittal
as to this count.
The Pavich Project
[¶21.] The State’s case relating to the Pavich project centered upon the
following three events, which are, for the most part, undisputed:
(1) Wires R Us had completed the rough-in portion of the bid for
electrical work on the project and, in March 2017, had invoiced
Suchor for 80% of their bid price (per its usual terms); but at the
time Suchor stopped working on the Pavich project, this
$16,681.66 invoice remained unpaid.
(2) In April 2017, Suchor invoiced, and Pavich paid (as part of a
larger draw request), $1,800 for a central vacuum system for
which Suchor had installed piping and outlets; but Suchor failed
to deliver the vacuum unit to complete the system.
6. See State v. Pierson, 86 A.2d 559 (Del. Sup. Ct. 1952). In Pierson, the court
examined whether an offense occurs when “a building contractor is charged
with misappropriation of money received by him for the construction of a
house, but where he is not charged with failure to pay actual claims of
persons furnishing labor and materials for the house[.]” Id. at 561. The
indictment at issue charged “that the defendant received money ‘in
connection with a contract . . . for the sale of land . . . and for the construction
of a house thereon and did thereafter . . . pay out, use and appropriate the
said money prior to paying any of the money so received to satisfy lawful
claims of any persons . . . for labor and/or materials contemplated in the
aforesaid contract[.]’” Id. at 560. The court concluded that “[i]t is clear that
this Statute has not been violated unless there are unpaid claims for labor
and materials which should have been paid by the contractor out of the
moneys misappropriated by him.” Id. at 562.
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(3) In May 2017, Suchor invoiced (as part of a separate draw
request), and Pavich paid, $3,576.50 for quartz countertops that
Suchor never ordered or delivered.
[¶22.] Suchor does not dispute that Pavich made payments to him after
Wires R Us had invoiced Suchor for work already done on the project and that this
bill remained due and owing. 7 However, Suchor asserts that the State failed to
present sufficient evidence that he knowingly used any of the proceeds of Pavich’s
payments for purposes other than labor, skill, materials, and machinery on the
Pavich project. Suchor points to the fact that the record does not contain any of his
bank statements, and the State did not present evidence tracing where the funds
paid on any of the three projects were actually spent. He thus contends that given
the absence of evidence tracking his use of Pavich’s payments, and because Pavich
still owed him additional funds under the contract when they parted ways, “it is
impossible to determine circumstantially if the money he received for the project
was misappropriated for some other purpose such as would violate §44-9-13.”
[¶23.] The State argues, in response, that the jury could infer Suchor used
payments from Pavich for purposes other than labor, skill, materials, or machinery
for this project, and that he intended to deprive the Paviches of their funds because:
(1) Pavich paid Suchor $329,000 under the contract; (2) $16,681.66 was due and
7. Suchor maintained that because the electrical finishing work is typically one
of the last phases completed, he could wait until the end of the project to pay
this bill. A witness from Wires R Us testified that Suchor was often a “late
payor.” Notably, the Wires R Us bill is the only unpaid invoice at issue for
the Pavich project. There is no evidence in the record to suggest that any
amounts were due and owing to other contractors or suppliers for the central
vacuum system and quartz countertops.
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owing to Wires R Us; and (3) Suchor did not pay the outstanding invoice. In order
to draw the necessary inference that Suchor misappropriated funds, the State relies
upon the fact that Suchor ran a cash-based business that operated out of a single
checking account, and Suchor admitted to commingling money from all projects. 8
The State further directs this Court to Suchor’s testimony that he could not
specifically track where project money was spent. Finally, the State notes that
during the general timeframe when the Wires R Us bill was outstanding and
Suchor was invoicing Pavich for items he ultimately never purchased (i.e., the
central vacuum and quartz countertops), Suchor had an overdrawn bank account in
January 2017 and later bounced a check to J&M Drywall on the Feeser project in
August or September 2017.
[¶24.] As a starting premise, SDCL 44-9-13 does not, contrary to the State’s
suggestion, prohibit a contractor from operating a cash-based business with only
one general account. While a contractor operating in this fashion (depositing funds
into and paying bills out of one account) must nevertheless pay the subcontractors
and suppliers on any given project in a timely manner to avoid running afoul of
SDCL 44-9-13, it was not Suchor’s burden at trial to prove how he spent the
payments he received from Pavich. Rather, it was the State who bore the burden of
proving beyond a reasonable doubt that Suchor knowingly used proceeds from any
8. The State directs this Court to cases from other jurisdictions related to
contractor theft or misappropriation to support its argument that the
evidence is sufficient to sustain Suchor’s convictions. These cases, however,
are factually distinguishable and the distinctive statutes upon which they
were decided do not assist in our interpretation and application of SDCL 44-
9-13.
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payment by Pavich for purposes other than labor, skill, materials, or machinery for
improvements on this project, and that he did so while any account for items
already furnished for such project prior to the receipt of Pavich’s payments
remained unpaid, due, and owing. From our review, the State did not present
sufficient evidence to meet this burden.
[¶25.] While the record contains multiple payments to Suchor under the
contract, the record does not contain evidence showing how Suchor spent this
money. The State did not offer or obtain Suchor’s bank records to show whether he
deposited Pavich’s payments and, if so, what disbursements were made from the
account. Moreover, it does not appear from the record that Pavich had paid Suchor
the entire contract price at the time they parted ways on the project, and the record
is unclear as to whether some of the amounts Pavich paid Suchor were owed
pursuant to the contract price or as reimbursement to Suchor for the considerable
overages and upgrades. 9 Finally, it is apparent in the State’s evidence and
presentation of the case, that the State was more focused on proving the later
dismissed theft by deception charges (for which the State’s proof revolved around
Suchor’s failure to perform), rather than on proving the elements necessary for a
conviction under SDCL 44-9-13.
9. The amount Pavich paid under the contract terms is disputed. Suchor
claimed he had received only $275,000 of the $332,000 contract price, and the
remaining payments were for change orders or extras which Pavich agreed to
pay over and above this price. In any event, given the State’s assertion that
$329,000 had been paid on the contract, there appears to be no dispute that
Pavich had not yet paid the full contract price.
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[¶26.] Without evidence showing how Suchor spent the money he received
from Pavich, the jury had no reasonable basis from which it could infer that Suchor
knowingly used these payments for purposes other than labor, skill, materials, or
machinery for the improvement of Pavich’s home, and even less of a basis from
which it could infer that Suchor improperly spent the money while the Wires R Us
bill remained due and owing. While Suchor’s failure to purchase the central
vacuum unit and countertops after having received payments from Pavich for these
items could conceivably give rise to civil liability on the contract, a conviction under
SDCL 44-9-13 requires the State to establish, circumstantially at the very least,
that Suchor used these payments for some other purpose than costs related to the
Pavich project. Because such critical evidence is absent in this record, the circuit
court erred in denying Suchor’s motion for judgment of acquittal on this count.
The Feeser Project
[¶27.] Similar to his argument related to the Pavich project, Suchor contends
that the State failed to present any evidence that Suchor knowingly spent payments
received from Feeser for purposes other than labor, skill, materials, or machinery on
this project. The only unpaid subcontractor bill at issue on the Feeser project
relates to a $13,184 bill owed to J&M Drywall, which Feeser ultimately paid after
he fired Suchor.
[¶28.] To prove that Suchor misappropriated Feeser’s funds, the State relied
on a $20,000 payment Feeser made to Suchor on July 10, 2017—a “milestone”
payment under the contract, due upon completion of the drywall—and the fact that
Suchor did not pay the outstanding bill owed to J&M Drywall. Suchor, on the other
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hand, testified that the drywall was in fact completed when he requested this
payment, but explained that these milestone payments were more in the nature of
progress payments and did not necessarily correlate to an amount spent on the
particular type of work noted as the benchmark for such payment. He further
explained that he did not remit the final payment to J&M Drywall because Feeser
owed him over $13,000 under the contract for other services performed and that
Feeser had agreed to pay him $13,850 at closing on the sale of the house. 10
[¶29.] Similar to the Pavich project, a review of the circumstances
surrounding the Feeser project is complicated by the fact that Suchor never finished
the job and the fact that Feeser never paid the entire amount due on the contract.
Moreover, as with the payments related to the Pavich project, the State did not
present any evidence showing how Suchor used the $20,000 payment from Feeser.
The State did not obtain or offer Suchor’s bank records to show whether he
deposited the $20,000 check and, if so, what disbursements were made from the
account after that point. Rather, the State again relied on Suchor’s commingling of
funds in one bank account.
[¶30.] While we deem it insufficient to infer from the general commingling of
Suchor’s funds that more than $5,000 of these proceeds (the threshold amount the
jury found Suchor misappropriated) were used for something other than the Feeser
10. The record reflects that Suchor filed a lien on the Feeser property for
$57,177.00 after the sale of the house fell through. Suchor testified that he
received $369,866 from Feeser on the $385,000 contract, so it is not clear how
he arrived at this lien amount. Nevertheless, Feeser admitted that he owed
Suchor additional amounts under the contract. Also, it is undisputed that
after Feeser decided to sell the home, Feeser made no further payments to
Suchor on the contract.
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project, even if such an inference could conceivably be drawn, there is nevertheless
insufficient evidence to establish the other essential elements of the Feeser charge.
In particular, it is difficult to discern from the record when the remaining balance
owed to J&M Drywall became due and owing. Notably, there is no invoice from
J&M Drywall in the record. The State also failed to admit any evidence regarding
the credit terms Suchor had arranged with J&M Drywall. The only documentation
admitted at trial showing an amount due to J&M Drywall was a lien waiver
prepared by J&M Drywall on August 9, 2017, referring to a “full and final payment”
of $13,184. 11 Further, while there are text messages in the record between Suchor
and a J&M Drywall employee to support an inference that the bill became due and
owing by early August 2017, the minimal evidence in the record does not support an
inference that during this timeframe, Suchor had spent more than $5,000 of the
proceeds he received from Feeser for purposes other than labor, skill, materials, or
machinery on the Feeser project.
[¶31.] Without evidence from which the jury could have inferred that Suchor
used Feeser’s money while the drywall bill was unpaid and due and owing for a
purpose other than the Feeser project, the conviction on this charge cannot stand.
The remaining dispute between the parties over amounts spent and due on this
11. This lien waiver was dated on the date Feeser was set to close on the sale of
the home to Suchor’s brother, but this sale did not ultimately occur, and it is
unclear when, and if, this waiver was provided to Feeser. Although
unrelated to the outstanding bill at issue here, the record does reflect that
Suchor had made prior payments connected to the drywall. The record
contains a receipt showing that Suchor spent $6,921 on drywall on June 16,
2017 and a check by Suchor on June 28 issued to and cashed by J&M Drywall
for $4,000. Both the receipt and check note that these were amounts spent
on the Feeser project.
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project must be resolved in the parties’ civil case. The circuit court erred in denying
Suchor’s motion for a judgment of acquittal as to this count.
[¶32.] Reversed.
[¶33.] JENSEN, Chief Justice, and KERN and SALTER, Justices, and
GILBERTSON, Retired Justice, concur.
[¶34.] MYREN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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