State v. Jackson

#24805-rev & vacate-SABERS, Retired Justice

2009 SD 29

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KENT JACKSON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MERTON B. TICE, JR.
Judge

* * * *

LAWRENCE E. LONG
Attorney General

TODD A. LOVE
ANDREW KNECHT
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
THOMAS M. DIGGINS
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.

* * * *

ARGUED FEBRUARY 17, 2009

OPINION FILED 04/22/09
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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 Conklin 2 roof on his

business, the St. Joe Antiques Mall (Mall), located in Rapid City. At the time, the

1. The Conklin Company is a chemical manufacturing company with several
different product lines, including roofing products. Jackson began ordering
materials from Conklin 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.

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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

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. Epperson 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 prior to this
deposit, the account balance was $10.33. Thereafter, the account balance
fluctuated, but was more than $12,250 in August 2002.

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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. Four Seasons planned to purchase

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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 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.

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

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[¶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

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. 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(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. 8 While the State argued that the other acts were a “mirror image” of the

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,
(continued . . .)
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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

______________________
(. . . continued)
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 [c]ourt 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 [c]ourt 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.

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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 Epperson. 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 NW2d 100, 103 (citing State v.
Gonzalez, 2001 SD 47, ¶7, 624 NW2d 836, 838). “A guilty

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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
NW2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶22,
654 NW2d 793, 800).

2005 SD 17, ¶5, 692 NW2d 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 NW2d 915, 919 (citing State v. Heftel, 513 NW2d 397, 400 (SD

10. SDCL 22-30A-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.)

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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 NW2d 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 NW2d 918,

920 (SD 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 NW2d at 797.

[¶19.] We recently considered this issue in State v. Morse, 2008 SD 66, 753

NW2d 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 NW2d 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

Heffrons’ 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

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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 915, ¶17, 753 NW2d 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 NW2d at 921-22.

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 NW2d at 920 (citing Cash v. United States, 700 A2d 1208, 1211-
12 (DCCtApp 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
NW2d 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 P2d 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 NW2d 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 title 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
(continued . . .)
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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 NW2d 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 Epperson was well aware that certain

weather conditions were required before Jackson could remove the existing gravel

______________________
(. . . continued)
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 NW2d 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 NW2d 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”).

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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(1) 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

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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

Epperson 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

Epperson 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.

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[¶27.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶28.] GILBERTSON, Chief Justice, dissents.

GILBERTSON, Chief Justice (dissenting).

[¶29.] I respectfully dissent for the reasons stated in State v. Morse, 2008 SD

66, ¶¶30-44, 753 NW2d 915, 923-27 (Gilbertson, C.J., dissenting).

This Court does not retry cases de novo. Instead, we review the
evidence in the light most favorable to the jury’s verdict. In a
similar theft by deception case, we set forth our standard of
review. . . Where conflicting evidence is present, as in this case,
and the credibility of witnesses is in issue, then it is a question
of fact for the jury. The jury is physically present at the trial
and, therefore, in the best position to judge the demeanor and
credibility of the witnesses. This standard of review is vitally
important in a theft by deception case, because rarely, if ever,
will a defendant get on the stand and announce that he or she
had the specific intent to defraud. “The proof of fraudulent
intent need not be direct; it may be inferred from expressly proven
acts of the accused and surrounding circumstances.” People ex
rel. BJT, 2005 SD 123, ¶10, 707 NW2d 489, 492 (quoting State
v. Teutsch, 80 SD 462, 466, 126 NW2d 112, 115 (1964)).

Id., 2008 SD 66, ¶31, 753 NW2d at 923-24 (citations omitted) (emphasis added).

[¶30.] The majority opinion eschews the jury’s ability to consider the

demeanor and credibility of the witnesses and to draw conclusions from the

evidence based on these factors. The majority opinion does not draw favorable

inferences from the evidence in support of the jury’s conclusion regarding these

circumstances, as required by our standard of review. See supra ¶15. Instead, it

replaces the jury’s physical presence in the courtroom with its own reevaluation of

the evidence from a cold reading of the record. See supra ¶¶22-24. While

reconsidering the evidence, the majority opinion is particularly deferential to

Jackson’s position, especially on the “profit” and “intent” issues. See supra ¶23

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(“Jackson also testified that $5,000 of the down payment was profit.” Jackson’s

credibility is the province of the jury and the “profit” was not actual profit, as

discussed below.); ¶24 (“All of the other evidence indicates that Jackson had the

intention to complete the job.”) The majority opinion supplants the jury’s

conclusions regarding intent and witness credibility with its own.

[¶31.] The evidence indicates that Jackson took his “profit” out of Epperson’s

proceeds before performing the work.

profit, n. 1. The excess of revenues over expenditures in a business
transaction;
...
gross profit. Total sales revenue less the cost of the goods sold, no
adjustment being made for additional expenses and taxes.
...
net profit. Total sales revenue less the cost of the goods sold and all
additional expenses.
...
paper profit. A profit that is anticipated but not yet realized.
...
unrealized profit. See paper profit.

Black’s Law Dictionary (8th ed. 2004), profit. Jackson incorrectly estimated the

“profit” to be received from this project. After he had withdrawn $5,000 of

Epperson’s down payment, Four Seasons had insufficient funds available to pay the

expenditures or costs of the project. Even though he considered the $5,000 to be

“his,” Jackson and Four Seasons had not yet realized the profit. Jackson did not

return this unrealized profit to the business in order to make up for the deficiency.

Since that time, he has maintained his personal right to these “profits.”

[¶32.] The jury heard evidence that Jackson requested a 70% down payment,

and that the 50% Epperson eventually put down was, according to his belief, to go

toward the purchase of materials. In the twenty days between the deposit of

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Epperson’s money in Four Season’s bank account and the $5,000 “profit”

withdrawal for his personal use, no other deposits were made into the account.

Considering all of the surrounding circumstances, the jury could have reasonably

concluded that Jackson specifically intended, at the time the contract was made, to

get as much money as possible from the victim and then withdraw the money for his

personal use, with no intent to fully perform.

[¶33.] The jury’s finding is not unsupported simply because the

circumstantial evidence of Jackson’s initial intent was only ascertainable from

events and conduct that occurred after the deceit had been accomplished. See supra

¶21. 12 Later acts are as much a part of the “surrounding circumstances” as acts

and statements made prior to the deception. Furthermore, Jackson’s non-

performance was not the only fact presented by the State to support the theory of

guilt. See supra ¶22. 13 The majority opinion simply disregards the other evidence

in deference to Jackson’s view of the case, to the detriment of the jury’s verdict.

12. The evidence also includes testimony regarding a later roofing contract
entered into by Four Seasons. In this later contract, Jackson artificially
inflated the contract bid, at the buyer’s request, in order to allow the buyer to
obtain a greater loan from a bank. Jackson was paid the inflated amount,
then returned the excess to the buyer. Jackson received $1,000 in payment
from the buyer for his participation in this scheme. This evidence was
admitted at trial under Rule 404 (b). The jury could have used this evidence
to conclude that the Four Seasons business was a front – a common plan or
scheme for Jackson to obtain illicit money.

13. The majority opinion states: “[e]vidence was presented that weather
conditions during this time prevented Jackson from working on certain days.”
See supra ¶22. The contract was signed in early April 2002. Jackson had not
completed the installation by November 2002 when Epperson hired another
company to finish the roof work. The jury was justified in rejecting any
argument that there were insufficient days throughout the entire spring,
(continued . . .)
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[¶34.] I dissent.

______________________
(. . . continued)
summer, or fall of 2002 to provide weather conditions favorable for roof
installation, or that some other problem prevented Jackson from working.

-17-

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 *542denied 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 *543before 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.

*544[¶ 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 ar*545gued 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 *546where 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. *547As 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 *548complete 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.

. 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.

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

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

. 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.

.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.

. 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.

. In his brief, Jackson states that in Schedule F of the bankruptcy filing, Four Seasons listed *544Epperson'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.

. 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.

. 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.

. 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.)

. 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 *547have 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”).

GILBERTSON, Chief Justice
(dissenting).

[¶29.] I respectfully dissent for the reasons stated in State v. Morse, 2008 SD 66, ¶¶ 30-44, 753 N.W.2d 915, 923-27 (Gilbertson, C.J., dissenting).

This Court does not retry cases de novo. Instead, we review the evidence in the light most favorable to the jury’s verdict. In a similar theft by deception case, we set forth our standard of review ... Where conflicting evidence is present, as in this case, and the credibility of witnesses is in issue, then it is a question of fact for the jury. The jury is physically present at the trial and, therefore, in the best position to judge the demean- or and credibility of the witnesses. This standard of review is vitally important in a theft by deception case, because rarely, if ever, will a defendant get on the stand and announce that he or she had the specific intent to defraud. “The •proof of fraudulent intent need not be direct; it may be inferred from expressly proven acts of the accused and surrounding circumstances.” People ex rel. BJT, 2005 SD 123, ¶ 10, 707 N.W.2d 489, 492 (quoting State v. Teutsch, 80 S.D. 462, 466, 126 N.W.2d 112, 115 (1964)).

Id., 2008 SD 66, ¶ 31, 753 N.W.2d at 923-24 (citations omitted) (emphasis added).

[¶ 30.] The majority opinion eschews the jury’s ability to consider the demeanor and credibility of the witnesses and to draw conclusions from the evidence based *549on these factors. The majority opinion does not draw favorable inferences from the evidence in support of the jury’s conclusion regarding these circumstances, as required by our standard of review. See supra ¶ 15. Instead, it replaces the jury’s physical presence in the courtroom with its own reevaluation of the evidence from a cold reading of the record. See supra ¶¶ 22-24. While reconsidering the evidence, the majority opinion is particularly deferential to Jackson’s position, especially on the “profit” and “intent” issues. See supra ¶23 (“Jackson also testified that $5,000 of the down payment was profit.” Jackson’s credibility is the province of the jury and the “profit” was not actual profit, as discussed below.); ¶ 24 (“All of the other evidence indicates that Jackson had the intention to complete the job.”) The majority opinion supplants the jury’s conclusions regarding intent and witness credibility with its own.

[¶ 31.] The evidence indicates that Jackson took his “profit” out of Epperson’s proceeds before performing the work.

profit, n. 1. The excess of revenues over expenditures in a business transaction;

gross profit. Total sales revenue less the cost of the goods sold, no adjustment being made for additional expenses and taxes.

net profit. Total sales revenue less the cost of the goods sold and all additional expenses. paper profit. A profit that is anticipated but not yet realized.

unrealized profit. See paper profit.

Black’s Law Dictionary (8th ed.2004), profit. Jackson incorrectly estimated the “profit” to be received from this project. After he had withdrawn $5,000 of Epper-son’s down payment, Four Seasons had insufficient funds available to pay the expenditures or costs of the project. Even though he considered the $5,000 to be “his,” Jackson and Four Seasons had not yet realized the profit. Jackson did not return this unrealized profit to the business in order to make up for the deficiency. Since that time, he has maintained his personal right to these “profits.”

[¶ 32.] The jury heard evidence that Jackson requested a 70% down payment, and that the 50% Epperson eventually put down was, according to his belief, to go toward the purchase of materials. In the twenty days between the deposit of Epper-son’s money in Four Season’s bank account and the $5,000 “profit” withdrawal for his personal use, no other deposits were made into the account. Considering all of the surrounding circumstances, the jury could have reasonably concluded that Jackson specifically intended, at the time the contract was made, to get as much money as possible from the victim and then withdraw the money for his personal use, with no intent to fully perform.

[¶ 33.] The jury’s finding is not unsupported simply because the circumstantial evidence of Jackson’s initial intent was only ascertainable from events and conduct that occurred after the deceit had been accomplished. See supra ¶ 21.12 *550Later acts are as much a part of the “surrounding circumstances” as acts and statements made prior to the deception. Furthermore, Jackson’s non-performance was not the only fact presented by the State to support the theory of guilt. See supra ¶ 22.13 The majority opinion simply disregards the other evidence in deference to Jackson’s view of the case, to the detriment of the jury’s verdict.

[¶ 34.] I dissent.

. The evidence also includes testimony regarding a later roofing contract entered into by Four Seasons. In this later contract, Jackson artificially inflated the contract bid, at the buyer's request, in order to allow the buyer to obtain a greater loan from a bank. Jackson was paid the inflated amount, then returned the excess to the buyer. Jackson received $1,000 in payment from the buyer for his participation in this scheme. This evidence was admitted at trial under Rule 404(b). The jury could have used this evidence to con-*550elude that the Four Seasons business was a front — a common plan or scheme for Jackson to obtain illicit money.

. The majority opinion states: “[ejvidence was presented that weather conditions during this time prevented Jackson from working on certain days.” See supra ¶ 22. The contract was signed in early April 2002. Jackson had not completed the installation by November 2002 when Epperson hired another company to finish the roof work. The jury was justified in rejecting any argument that there were insufficient days throughout the entire spring, summer, or fall of 2002 to provide weather conditions favorable for roof installation, or that some other problem prevented Jackson from working.