APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: 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.
[¶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.*fn1
[¶3.] After seeing Four Season's advertisement in the yellow pages, Epperson contacted Jackson in March of 2002 to install a Conklin*fn2 roof on his business, the St. Joe Antiques Mall (Mall), located in Rapid City. The Mall currently 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.*fn3 The proposal was signed on April 8, 2002,*fn4 and a check for $12,250 was deposited into Four Seasons' business account on April 10, 2002.*fn5 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 Mall'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, and, on this same trip to obtain the equipment, planned to purchase the polyurethane foam from Conklin.*fn6 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 Epperson 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, Epperson 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 Department of Criminal Investigation agent investigated the matter. During a November 3, 2004 telephone conversation, Jackson explained to the agent that Epperson had filed a civil lawsuit against him, but that the debt was discharged after Four Seasons filed Chapter 7 bankruptcy on March 5, 2004.*fn7 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(1-2). 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.*fn8 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, did not show intent with regard to the 2002 allegation, and the evidence was offered for its likely prejudicial ...