State v. Jackson

2009 SD 29, 765 N.W.2d 541, 2009 S.D. LEXIS 29, 2009 WL 1100932

• Court: South Dakota Supreme Court
• Decided: April 22, 2009
• Docket: 24805
• Status: Published

Opinions

SABERS, Retired Justice.

[¶ 1.] After Kent Jackson failed to complete the installation of a roof on Gary Epperson’s business, the State charged him with grand theft by deception. Jackson moved for judgment of acquittal after the State rested its case-in-chief. The motion was denied. A jury convicted him of the crime, prompting Jackson to again move for a directed verdict, but it was denied a second time. Jackson appeals. We reverse.

FACTS

[¶ 2.] Jackson embarked upon a roofing career in 1995. His business, based out of Pierre, South Dakota, was a sole proprietorship from 1995 until 2000, when it was incorporated under the name Four Seasons Roofing Corporation (Four Seasons). Four Seasons was engaged in installing various types of roofs, including polyurethane foam roofs. Four Seasons purchased polyurethane foam roofing materials from the Conklin Company (Conklin) based out of Minnesota.¹

[¶ 3.] After seeing Four Season’s advertisement in the yellow pages, Epperson contacted Jackson in March of 2002 to install a Conklin² roof on his business, the St. Joe Antiques Mall (Mall), located in Rapid City. At the time, the Mall had an asphalt roof covered with gravel. Jackson drove to Rapid City to inspect, diagram, and measure the roof. Upon doing so, Jackson contacted Conklin to get an estimate for the cost of materials based on his mock order. Thereafter, Epperson, on behalf of the Mall, and Jackson, on behalf of Four Seasons, negotiated the price of the contract at $24,500, with fifty percent down.³ The proposal was signed on April 8, 2002,⁴ and a check for $12,250 was deposited into Four Seasons’ business account on April 10, 2002.⁵ The contract indicated that the down payment would be used for materials, however, Epperson testified that he knew the down payment would not cover the total cost of materials.

[¶ 4.] Installation of the new roof involved three stages: (1) removal of the gravel on the existing roof; (2) application of the polyurethane foam; and (3) application of a basecoat and topcoat on top of the foam. Completion of all the stages required warm, dry conditions with minimal winds. Epperson claims he told Jackson that he wanted the roof completed by the end of the summer. However, there was no completion date or indication that time was of the essence in the contract. Jackson testified that he informed Epperson of other contracts needing to be completed before starting on the Mali’s roof. The record indicates that Four Seasons had several roofing contracts during the spring, summer, and fall of 2002.

[¶ 5.] Jackson testified that precipitation in the spring months of 2002 delayed the first stage of the roofing project. On June 24, 2002, Four Seasons rented a dump truck and hired temporary workers to assist in removing the gravel from the roof, which took two days. After the gravel was removed, tools, including brooms and a wheelbarrow, remained on the roof of the Mall.

[¶ 6.] Epperson admitted that, at the time the contract was formed, Jackson told him that Four Seasons did not currently own the machine needed to spray the polyurethane foam. Jackson told Epperson that he planned to either purchase a machine or subcontract the work. After Four Seasons lost the bid for another contract, it was unable to obtain financing to purchase the equipment. On June 1, 2002, Jackson advised Epperson of Four Seasons’ inability to purchase a new machine, but told Epperson that he was attempting to borrow or rent the equipment.

[¶ 7.] In July 2002, Four Seasons arranged to rent the necessary equipment from Sunway Homes in Annandale, Minnesota. Four Seasons planned to purchase the polyurethane foam from Conklin on the trip to obtain the equipment.⁶ Jackson rented a trailer in Rapid City on July 14, 2002, and then commenced the trip to Minnesota. Between Rapid City and Pierre, Jackson’s truck encountered transmission problems, preventing him from completing the trip. The next day, Jackson informed Epperson and Sunway Homes of the unexpected vehicle malfunction. Jackson’s truck was repaired on July 25, 2002. By that time, however, the equipment at Sunway Homes was no longer available.

[¶ 8.] On September 3, 2002, Epperson filed a complaint with the Rapid City Police Department, alleging that Jackson failed to fulfill his contractual obligations. A Pennington County state’s attorney contacted Jackson to discuss the allegations. Jackson explained why he had not completed the roof, but assured the state’s attorney that he intended to complete it as soon as possible. The Pennington County State’s Attorneys Office chose not to prosecute Jackson, determining that it was a civil, not criminal, matter.

[¶ 9.] In November 2002, Jackson purchased a foam machine in Texas. By that time of the year, however, the weather conditions were not amenable to completing the installation. Jackson wrote Epper-son a letter, informing him of the purchase, and told him that the Mall roof would be the first contract completed the following spring. Despite that notice, Ep-person contracted with Black Hills Roofing to have the roof completed in early spring 2003.

[¶ 10.] Epperson later filed a complaint with the Attorney General’s Office. A Division of Criminal Investigation agent investigated the matter. During a November 3, 2004 telephone conversation, Jackson explained to the agent that Ep-person had filed a civil lawsuit against him, but that the debt was discharged after Four Seasons filed Chapter 7 bankruptcy on March 5, 2004.⁷ The civil lawsuit was dismissed in 2006.

[¶ 11.] On July 20, 2006, the State charged Jackson by indictment with grand theft by deception in violation of SDCL 22-30A-3(l-2). Jackson entered a plea of not guilty at his September 8, 2006 arraignment.

[¶ 12.] On April 18, 2007, the trial court held a motion hearing on the issue of the admission of other acts evidence relating to a roofing contract KLD Enterprises (KLD) had formed in 2005 with Thomas King, the owner of King’s Inn Hotel in Pierre.⁸ While the State argued that the other acts were a “mirror image” of the instant allegations, Jackson responded by contending that this evidence was not relevant, served no proper purpose and did not show intent with regard to the 2002 allegation. Jackson further contended the evidence was offered for its likely prejudicial effect upon the jury. The trial court decided to allow the other acts evidence for the purpose of showing intent and/or common plan or scheme.⁹

[¶ 13.] The case was tried before a jury in a three-day trial beginning on May 7, 2007. After the State rested its case-in-chief, Jackson made a motion for judgment of acquittal on the ground that the State failed to prove specific intent. The motion was denied. Upon conclusion of the trial, the jury returned a guilty verdict. Jackson filed a written motion for judgment of acquittal. The motion was again denied.

[¶ 14.] In June 2007, Jackson was sentenced to four years in the state penitentiary. The sentence was suspended upon imposition of four years probation, provided that certain conditions were met. Two months later in August, the court considered the issue of restitution. Jackson argued that the debt had been discharged in bankruptcy proceedings and that the State may have violated federal law by prosecuting him. Alternatively, Jackson argued that the trial court should credit him for the work performed and funds expended. In a letter dated January 16, 2008, the trial court decided that Jackson would be held personally liable for restitution to Ep-person. Jackson timely filed his notice of appeal, raising three issues:

1. Whether the trial court erred in denying Jackson’s motions for judgment of acquittal.

2. Whether the trial court erred in allowing the State to present other acts evidence.

3. Whether the trial court erred in ordering Jackson to pay restitution where the debt of Jackson’s corporation, Four Seasons, was previously discharged in bankruptcy proceedings.

STANDARD OF REVIEW

[¶ 15.] In State v. Swalve, we reiterated the standard of review for a trial court’s denial of a defendant’s motion for judgment of acquittal:

In determining whether a trial court erred in denying a defendant’s motion for judgment of acquittal, “[o]ur inquiry is whether the State set forward sufficient evidence from which the finder of fact could reasonably find the defendant guilty.” State v. Boston, 2003 SD 71, ¶ 6, 665 N.W.2d 100, 103 (citing State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838). “A guilty verdict will not be set aside if the [S]tate’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” State v. Phair, 2004 SD 88, ¶ 16, 684 N.W.2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶ 22, 654 N.W.2d 793, 800).

2005 SD 17, ¶ 5, 692 N.W.2d 794, 797.

[¶ 16.] 1. Whether the trial court erred in denying Jackson’s motions for judgment of acquittal.

[¶ 17.] Jackson contends the trial court abused its discretion by not directing the verdict in his favor because the State failed to prove that Jackson intended to defraud Epperson, as required by SDCL 22-30A-3. The State responds by arguing there was sufficient evidence of Jackson’s intent to deceive because Jackson “purposefully led [Epperson] to believe that he had the capacity and intent to build [him] a roof’ and Jackson told Epperson that the down payment “would go toward materials for the project.”

[¶ 18.] “Theft by deception is a specific intent crime.”¹⁰ State v. Morse, 2008 SD 66, ¶ 12, 753 N.W.2d 915, 919 (citing State v. Heftel, 513 N.W.2d 397, 400 (S.D.1994)). The accused must “ ‘act willfully and with the specific intent to deceive or cheat, ordinarily for the purpose of either causing some financial loss to another or bringing about some financial gain to one’s self.’ ” Id. (quoting Heftel, 513 N.W.2d at 400). “ ‘It is only where [actors do] not believe what [they] purposely caused [their victims] to believe, and where this can be proved beyond a reasonable doubt, that [these actors] can be convicted of theft.’ ” Id. (quoting State v. Hurst, 507 N.W.2d 918, 920 (S.D.1993) (quoting Model Penal Code § 223.3 cmt 3(b))). “[T]he specific intent to defraud [must exist] at the time the property was received.” Swalve, 2005 SD 17, ¶ 9, 692 N.W.2d at 797.

[¶ 19.] We recently considered this issue in State v. Morse, 2008 SD 66, 753 N.W.2d 915. Morse agreed to do some home remodeling for Janice Heffron, to be financed by Janice’s mother, Maxine. Morse assured Janice that he could complete the remodeling in “five weeks for $5,000,” “that he had plumbing experience, that his work would be above and beyond code, and that the local inspector did not inspect his work because he was so good.” Id. ¶ 3, 753 N.W.2d at 917. Morse started the work in January 2006, and continued until the second week of March, when Morse was unable to continue due to a back injury. By March, however, Maxine had paid Morse somewhere between $6,000 and $6,500 in cash. After the second week of March, Morse stopped coming to the house and never responded to the Hef-frons’ phone calls, personal visits, or certified mail. Janice contacted a licensed plumber to examine the work and estimate the cost of completing the project. The plumber pointed out several deficiencies in Morse’s work, and in the opinion of the plumber, Morse’s work added no value to the home. Thereafter, Morse was charged with grand theft by deception, and was found guilty by a jury. He appealed to this Court, asserting the evidence was insufficient to sustain the verdict. We reversed.

[¶ 20.] Based upon our review of the evidence, we held there was insufficient evidence to convict Morse of theft by deception. The facts were that Morse:

(1) failed to complete the project in five weeks for $5,000 as promised; (2) performed work that was not “above and beyond code” as promised; (3) lied about obtaining a building permit; (4) lied about the reasons he could not get the tankless water heater installed and why the pipes were leaking; (5) returned the water heater and did not give the $186 refund to Maxine; (6) never provided Janice or Maxine receipts for materials purchased; (7) quit working on the project prematurely and without explanation; and (8) never responded to the Heffrons’ attempts to contact him.

2008 SD 66, ¶ 17, 753 N.W.2d at 921. Even in light of these facts, we concluded there was no evidence that Morse had a purpose to deceive or intended to defraud the Heffrons at the time he agreed to do the work, or that Morse took Maxine’s money with the intention of not performing.¹¹ Id. ¶¶ 18-19, 753 N.W.2d at 921-22. As Justice Zinter pointed out in his concurring opinion, “the evidence reflected nothing more than a civil dispute involving a contractor who was, for a variety of reasons, unable to competently perform.” Id. ¶ 29, 753 N.W.2d at 923 (Zinter, J., concurring).

[¶21.] Considering the evidence in the light most favorable to the verdict, Jackson: (1) failed to complete the roofing project by the end of summer; (2) spent a portion of the down payment on items other than “roofing materials;” and (3) never placed an order for the foam. This is all post-inducement conduct, however. The State provided no evidence indicating that, at the time Jackson received the down payment from Epperson, Jackson had the intent to deceive him of his property.

[¶ 22.] Nonetheless, even these pieces of evidence fail to support a guilty verdict. First, the written contract is silent as to a completion date, or even any language indicating that time was of the essence. Similarly, the record indicates that Jackson had informed Epperson of other contracts needing to be completed before he could start on the Mall roof. And Epper-son was well aware that certain weather conditions were required before Jackson could remove the existing gravel and apply the foam, basecoat, and topcoat. Evidence was presented that weather conditions during this time prevented Jackson from working on certain days. Moreover, SDCL 22-30A-3(l) states that “as to a person’s intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise!.]” The mere fact that Jackson failed to complete the roof is not sufficient evidence to convict him of this crime.

[¶23.] The second and third pieces of evidence are interrelated, and therefore will be considered together. The State claims that Jackson’s intent to deceive is proven by the fact Jackson did not use the entire down payment to purchase materials for the roof, because several weeks after the down payment was deposited, the account balance was reduced by nearly $5,000. The State fails to recognize that at times the account balance exceeded the down payment amount. The fact is that, at least in 2002, Jackson was operating a busy roofing business with many outstanding contracts, causing cash to flow both into and out of the account. Moreover, Jackson testified that due to the temperature requirements of maintaining the foam, he could not purchase it until he was ready to apply it in the near future. Lastly, Jackson also testified that $5,000 of the down payment was profit. The fact that Jackson neither depleted the account, nor spent more than his profit, supports our decision that there was insufficient evidence to prove the requisite intent at the time the down payment was received.

[¶24.] All of the other evidence indicates that Jackson had the intention to complete the job. After receiving the down payment, Jackson: (1) hired temporary workers to remove the gravel from the existing roof; (2) rented a dump truck to transport the gravel to Epperson’s personal residence; (3) left tools on the roof possibly indicating an intention to return; (4) contacted various people to rent a foam machine; (5) rented a trailer to pick up a foam machine and the required foam in Minnesota; (6) after encountering transmission problems, contacted Epperson to inform him of the unexpected delay; (7) kept in contact with Epperson, whether it was by telephone, letter, or in person; (8) purchased and picked up a $7,000 foam machine in Texas; (9) informed Epperson that his roof would be the first completed the following spring; (10) continued the Four Seasons advertisement in the yellow pages; and (11) satisfactorily completed roofing contracts before and after the Ep-person contract. Even though it is not determinative of the issue, not a single witness testified that Jackson ever stated that he did not plan to complete the roof installation. Compared to Morse, the evidence in this case is even less sufficient to prove the intent element of grand theft by deception.

[¶ 25.] We hold that the State failed to set forth sufficient evidence from which the finder of fact could reasonably find that Jackson had specific intent to deceive. Jackson’s misfortune of bad luck, unavoidable delays, and perhaps not the ideal characteristics of a businessman do not equate to a specific intent to deprive Ep-person of his money. The trial court erred in denying Jackson’s motions for judgment of acquittal because the State’s evidence and all favorable inferences that can be drawn therefrom do not support a rational theory of guilt. Therefore, we reverse the trial court and vacate the judgment ordering Jackson to pay restitution. Because we reverse on Issue 1, we do not reach Issues 2 and 3.

[¶ 26.] Reversed and vacated.

[¶ 27.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur. [¶ 28.] GILBERTSON, Chief Justice, dissents.

1 . The Conklin Company is a chemical manufacturing company with several different product lines, including roofing products. Jackson began ordering materials from Conk-lin in 1997. In order to warranty the roofs, Jackson completed Conklin's three-day training program. Furthermore, on May 13, 2002, Jackson achieved the status of sales manager with the company. A Conklin representative testified that the status of sales manager was based on the number of people Jackson brought into the company and the volume of product sold.

2 . Epperson specifically wanted a Conklin-brand roof because of the warranty.

3 . The original bid was for $25,750, with seventy percent down.

4 . Some of the terms not included in the written agreement are disputed. During the contract negotiations, Epperson told Jackson that he had access to a dump truck, which would be needed to transport the gravel removed from the existing roof to Epperson’s personal residence. At a later time, Epperson informed Jackson that he would no longer provide the dump truck. It is disputed whether this latter conversation occurred before or after the contract was signed. Jackson claims that Epperson relayed this information to him after the contract was signed, causing Jackson to prepare a change order in writing to cover the cost of renting a dump truck. Ep-person refused to pay the additional costs when Jackson presented him with the change order invoice.

5 .Twelve thousand dollars ($250 was received in cash) was deposited into Jackson’s business account on April 10, 2002. Immediately pri- or to this deposit, the account balance was $10.33. Thereafter, the account balance fluctuated, but was more than $12,250 in August 2002.

6 . Jackson testified that because the foam had to be maintained within a certain temperature range and to avoid storage costs, he delayed in purchasing it until he knew that it would be used in the immediate future.

7 . In his brief, Jackson states that in Schedule F of the bankruptcy filing, Four Seasons listed Epperson's business, Epperson Enterprises, as a creditor, as well as the attorney for Epperson Enterprises, Alan L. Smoot. Neither Epperson nor Smoot appeared at the creditors meeting to object to the discharge of the debt, nor did they plead or allege in the bankruptcy proceedings that the debt was nondischargeable due to fraud.

8 . At the time of the contract with King, Jackson was an employee of KLD, his father's business. This contract, formed in August 2005, was also for the installation of a polyurethane foam roof. The contract did not include a completion date or language indicating that time was of the essence. At the time the contract was formed in August 2005, Jackson had the equipment to apply the topcoat and basecoat, but did not have the equipment to apply the foam. Jackson sold his foam machine in May 2005 as it no longer met EPA requirements. The evidence is disputed whether Jackson informed King of this at the time the contract was formed. When King later learned that KLD did not own the equipment, Jackson told King that he was in the process of either getting the proper equipment or hiring a subcontractor. Furthermore, right after the contract was formed, Jackson removed the gravel from the existing roof of the King's Inn, and a few weeks later, KLD purchased the spray foam from Foam Enterprises. When Jackson did not have the roof finished by the end of October 2005, King filed a civil law suit. A settlement was reached in May 2007.

9 . At the conclusion of the hearing, the court stated,

It’s the opinion of this [cjourt that the facts are similar in the nature as alleged, that they — though the issue of intent becomes clear as far as its issue being probative, common plan and scheme, the [cjourt would find that there is a basis upon which this could proceed. Regardless of who is the corporate entity, it’s the defendant’s conduct that occurred in both of these cases that we are dealing with, not with other agents of the corporation and not with something that was allegedly not within the knowledge of the defendant, Mr. Jackson. Therefore, I will allow the State to offer the evidence under 404(b).

The court did not orally make a record of its balancing analysis of the probative value and prejudice. However, a balancing analysis was set forth in court's findings of facts and conclusions of law, but those were not entered into the record until June 21, 2007, well after the trial was completed.

10 . SDCL 22-3 OA-3 provides in relevant part:

Any person who obtains property of another by deception is guilty of theft. A person deceives if, with intent to defraud, that person:

(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. However, as to a person’s intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise;

(2) Prevents another from acquiring information which would affect the other person's judgment of a transaction[.]

(Emphasis added.)

11 . In Morse, we highlighted several cases in which courts found the evidence sufficient to prove deceptive theft, but recognized that in those cases, "there was either circumstantial or direct evidence to establish the requisite intent.” Id. ¶ 15, 753 N.W.2d at 920 (citing Cash v. United States, 700 A.2d 1208, 1211—12 (D.C.Ct.App.1997) ("jury could infer intent when at the time Cash obtained the money he had no intention to complete the work because he took the money and never performed”) (emphasis in original); State v. Rivers, 588 N.W.2d 408, 412 (Iowa 1998) ("evidence suggests that when Rivers had milked the customer for as much as appeared possible, he never showed up again”); Craver v. State, 942 P.2d 1110, 1114 (Wyo.1997) (" 'Craver’s actions were more than mere nonperformance’ because he knew he could not perform the work and took the money after deceiving his victims that he could”) (emphasis in original)). See also Swalve, 2005 SD 17, ¶¶ 9, 17, 23, 692 N.W.2d at 798, 799, 800 (holding that evidence was sufficient to support convictions for grand theft by deception when it could be reasonably inferred that Swalve knew that he did not have clear tifie to the trade-in vehicles when they were resold due to the fact that he had not yet paid off the outstanding liens on the vehicles, that he failed to pay off the outstanding liens in a timely manner, and that he failed to remit customers' payments for the extended warranties purchased through the dealership); Phair, 2004 SD 88, ¶ 17, 684 N.W.2d at 665-66 (concluding that because Phair was aware that she was required to give the bank a lien against the car, and yet represented to another lender that there were no liens on the vehicle, “the jury could have found that Phair acted with intent to defraud by intentionally misrepresenting the lien status of the vehicle”); Hurst, 507 N.W.2d at 921 (holding that evidence was sufficient to support the deceptive theft charge because the defendants’ “plan was to bury the waste on Vollmer's property and yet they purposely caused MDS to believe that the waste would be incinerated properly”).