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Flemister v. State

Court of Appeals of Arkansas, Division IV

March 30, 2016

JOHN DOUGLAS FLEMISTER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE DREW COUNTY CIRCUIT COURT. NO. CR-14-59. HONORABLE DON GLOVER, JUDGE.

         JOHN FRANK GIBSON.

         ADAM DONNER JACKSON, ATTORNEY GENERAL.

         BART F. VIRDEN, Judge. GLADWIN, C.J., and GRUBER, J., agree.

          OPINION

         

Page 387

          BART F. VIRDEN, Judge

         A Drew County jury convicted appellant John Douglas Flemister of twelve

Page 388

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.

         I. Theft of Property

          The 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).

         II. Trial Testimony

         The 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.

         According 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.

         Bobby 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. ...


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