FROM THE DREW COUNTY CIRCUIT COURT. NO. CR-14-59. HONORABLE
DON GLOVER, JUDGE.
DONNER JACKSON, ATTORNEY GENERAL.
VIRDEN, Judge. GLADWIN, C.J., and GRUBER, J., agree.
F. VIRDEN, Judge
County jury convicted appellant John Douglas Flemister of
counts of theft of property, for which he was placed on
twelve years' probation and was ordered to pay $23,400 in
restitution. Appellant argues on appeal that the trial court
erred in denying his motions for a directed verdict. We
affirm his convictions.
Theft of Property
relevant subsection of the theft statute on which appellant
was tried provides that a person commits theft of property if
he knowingly obtains the property of another person by
deception with the purpose of depriving the owner of the
property. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2013).
" Deception" means, among other things, (i)
creating or reinforcing a false impression of fact, law,
value, or intention or other state of mind that the actor
does not believe to be true, (ii) preventing another person
from acquiring information that would affect his or her
judgment of a transaction, . . . or (v) employing any other
scheme to defraud. Ark. Code Ann. § 5-36-101(4)(A).
" As to a person's intention to perform a promise,
'deception' shall not be inferred solely from the
fact that the person did not subsequently perform the
promise." Ark. Code Ann. § 5-36-101(4)(B). A person
acts knowingly with respect to (A) the person's conduct
or the attendant circumstances when he is aware that his
conduct is of that nature or that the attendant circumstances
exist, or (B) a result of the person's conduct when he is
aware that it is practically certain that his conduct will
cause the result. Ark. Code Ann. § 5-2-202(2). A person
acts purposely with respect to his conduct or a result of his
conduct when it is the person's conscious object to
engage in conduct of that nature or to cause the result. Ark.
Code Ann. § 5-2-202(1).
evidence shows that appellant was a partner with his uncle,
Larry Flemister, in F & F Custom Boats, LLC, which was
started in 1978 by appellant's father, Bobby Jack
Flemister. Bobby Jack retired in 2012 due to health reasons,
and appellant took over his father's unfilled orders for
boats. Also, in January 2013, Larry began caring for his son,
who was diagnosed with cancer and died in late November 2013.
During that time, Larry did not take any orders for boats.
Larry described F & F Custom Boats as having been "
a one-man operation" until his return in early 2014.
to Larry, the person who took an order was responsible for
getting that boat built. Larry testified that he and
appellant each had a crew of two men and that they often
helped each other in building the boats. Appellant stated
that, although Larry did not take any orders, he was still
working on boats. The record, however, is not clear whether
Larry's crew continued to work in his absence. Bobby Jack
testified, " [W]e didn't have no whole bunch of
labor to help us." He further testified to times when
" three or four of [the laborers] laid out." Larry
acknowledged that there is only one man currently helping
them build boats.
Jack testified that, depending on materials and labor, a boat
could be built in thirty to forty-five days. Larry stated
that, depending on the type of boat and its size, a boat
could be built anywhere from two to eight weeks. According to
appellant, depending on the size, some boats could be built
in four or five days, while others could take from four to
five weeks. In explaining why it could take a year or longer
to build a boat, appellant said that having other boats to
build first would slow down the construction process. ...