Opinion
24A-CR-1208
12-06-2024
Marcus Dewayne Barnett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT DEBORAH K. SMITH THORNTOWN, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL MICHELLE HAWK KAZMIERCZAK DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Circuit Court The Honorable Lori N. Schein, Judge Trial Court Cause No. 06C01-2009-F6-1528
ATTORNEY FOR APPELLANT DEBORAH K. SMITH THORNTOWN, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL MICHELLE HAWK KAZMIERCZAK DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Bailey, Judge
Case Summary
[¶1] Marcus Dewayne Barnett appeals his conviction for Home Improvement Fraud, as a Class a misdemeanor, as well as the restitution order. We reverse.
Ind. Code §§ 35-43-6-12(a)(1), 3-43-6-13(a)(1).
Issues
[¶2] Barnett presents the following issues for review:
Barnett articulates a third issue, whether the trial court abused its discretion by entering a restitution order on an improper basis for damages and absent an adequate inquiry into Barnett's ability to make payments as a condition of his probation. We need not address that issue in light of our reversal of the criminal conviction.
I. Whether he, as a day laborer, is included within the statutory definition of a home improvement supplier.
II. Whether sufficient evidence supports the conviction.
Facts and Procedural History
[¶3] In April of 2020, Michelle Gough-Fry contacted Mark Sellers of Mark's Designs because she and her husband, John Fry, had decided to make some backyard improvements at their Zionsville home. On April 6, Sellers and Barnett met with Gough-Fry and Fry at their home. Sellers was the "majority talker" but Barnett was present for the conversation. (Tr. Vol. II, pg. 46.) The discussions culminated with "a plan to do both a deck and a small patio that would be concrete." (Id. at 10.)
The State asserts that "the four of them discussed whether to build a deck, a patio, or some combination of the two." Appellee's Brief at 6. There is evidence that Barnett was present but not that he actively participated in a discussion of the work to be done.
[¶4] Sellers filled in a "Contractors Invoice" form, including the following language: "This is a contract to build [a] 17 X 12 deck with pergola." (State's Ex. 1.) The terms of payment were: $3,800.00 down, $1,900.00 on completion of the deck, and $1,900.00 upon job completion. Signature lines were drawn for "Michelle Gough" and "Marcus Barnett," each marked with an "X." (Id.) Fry executed a check for $3,800.00 payable to Barnett. Barnett cashed the check on the same day; he would later testify that he gave the funds to Sellers, who purchased materials at a nearby Lowe's.
State's Exhibit 4 does not include signatures. According to the State, Gough-Fry "could not locate the signed written contract with the signature but recalled that it had been signed." Appellee's Brief at 7. The State directs our attention to Volume II, page 24 of the transcript. We have reviewed Gough-Fry's testimony and observe that - in response to a question of whether she had signed by the X - Gough-Fry testified "I believe that I signed it." (Tr. Vol. II, pg. 24) (emphasis added.)
According to Barnett's testimony, he received $15.00 per hour from Sellers for his hours worked.
[¶5] Within a few days, Sellers, Barnett, and Jason Wright returned to the Gough-Fry home, with building materials, to work on the project. They worked in teams of either two or three, and by Friday of that week, Gough-Fry estimated that the deck was 85% or 90% complete. Gough-Fry "made the comment we're almost done" and Sellers responded "we were going to talk to you about that. We wanted to see if we could go ahead and get the first payment towards the patio." (Tr. Vol. II, pg. 14.) Gough-Fry wrote a check payable to Jason Wright for $1,900.00. None of the men returned to the job site.
Gough-Fry testified that "my recollection [is] they were all there and they had all been there multiple days. I don't recall with specificity if all three were there every single day or sometimes it was two[.]" (Tr. Vol. II, pg. 13.)
The State claims that "Defendant, Sellers, and Wright asked if they could have the first installment payment before the deck was finished." Appellee's Brief at 8. This is inaccurate. Gough-Fry testified that "Mark," described as a person who was not present in court, asked for the payment. (Tr. Vol. II, pg. 14.) She stated that Barnett was "present" for the conversation. (Id.)
[¶6] Gough-Fry texted Sellers to request the return of the $1,900.00 payment to Wright as well as a $700.00 payment that had been made for changes in specifications, including stairs. She did not receive a refund. Her investigation led to the discovery that various homeowners had made fraud complaints against Sellers. Eventually, Gough-Fry and Fry hired another contractor to construct a concrete patio - with pavers instead of stamped concrete - at a cost of $6,700.00.
[¶7] On September 3, 2020, the State charged Barnett with Theft, as a Level 6 felony, and Home Improvement Fraud. A bench trial was conducted on January 16, 2024. At the close of the State's evidence, the trial court dismissed the Theft charge for insufficient evidence. After hearing the defense and rebuttal evidence, the trial court took the matter under advisement. On April 22, the trial court entered a judgment of conviction on the fraud count.
I.C. § 35-43-4-2.
Defense counsel advised the trial court that Sellers was not prosecuted; the State did not contest this assertion.
Barnett was charged with Theft by depriving the Frys of $6,400.00. The agreement reflected an aggregate price of $7,600.00 for all work to be performed. The State established that Barnett cashed the downpayment check for $3,800.00 and thus took control of those funds. However, the deck was, by Gough-Fry's estimation, 85% to 90% completed. No effort was undertaken to establish the value of the materials provided and the services that were performed, i.e., whether the value was more or less than the monies Barnett received. Accordingly, there was insufficient evidence that Barnett, by cashing the downpayment check, deprived the Frys of value.
[¶8] On the same day, the trial court proceeded to the matters of sentencing and restitution. Barnett received a sentence of 365 days to be served in the Boone County Jail, with 361 days suspended to probation. Barnett admitted that he had been uncooperative with answering questions for the presentence investigation report. However, he and his attorney conveyed to the trial court the information that Barnett receives Social Security disability payments and is a dialysis patient. No inquiry into Barnett's assets or financial obligations was conducted. The trial court ordered that Barnett, as a condition of his probation, pay restitution in the amount of $3,800.00, stating:
I'm going to note for the record that the only evidence the Court found relating to your involvement in the home improvement issue was the $3,800.00 check that you received. So, restitution is $3,800.00.(Tr. Vol. II, pg. 64.) Barnett now appeals.
Discussion and Decision
Statutory Definition of a Home Improvement Supplier
[¶9] Barnett contends that he, a temporary day laborer paid $15.00 per hour, does not meet the definition of a home improvement supplier. Count II, of which Barnett was convicted, alleged in pertinent part:
[B]etween April 6, 2020 and April 29, 2020 in Boone County, State of Indiana, Marcus Dewayne Barnett, a home improvement supplier, did enter into a home improvement contract with Michelle R. Gough and did knowingly misrepresent a material fact, to-wit: agreement to build and/or complete a deck and/or lay a concrete patio; said fact relating to the terms of the home improvement contract, and the home improvement contract price was $1,000 or more contrary to the form of the statutes in such cases made and provided by I.C. 35-43-6-12(a)(1) and against the peace and dignity of the State of Indiana.(App. Vol. II, pg. 11.)
[¶10] At that time, Indiana Code Section 35-43-6-12(a) provided in relevant part:
The statute was repealed in July 2021.
A home improvement supplier who enters into a home improvement contract and knowingly:
(1) misrepresents a material fact relating to:
(A) the terms of the home improvement contract; ...
commits home improvement fraud, a Class B misdemeanor.
Pursuant to Indiana Code Section 35-43-6-13(a)(1), the offense was enhanced to a Class A misdemeanor because the home improvement contract price was $1,000.00 or more.
[¶11] For these purposes, a "home improvement supplier" means "a person who engages in or solicits home improvement contracts whether or not the person deals directly with the consumer." Ind. Code § 35-43-6-6. A home improvement contract means "an oral or written agreement between a home improvement supplier and a consumer to make a home improvement and for which the contract price exceeds one hundred fifty dollars." I.C. § 35-43-6-4.
[¶12] The principal rule in statutory construction is to ascertain and give effect to the intent of the legislature. In re Estate of Bricker, 212 N.E.3d 712, 714 (Ind.Ct.App. 2023), trans. denied. All words will be given their plain and ordinary meaning unless otherwise indicated by the statute under consideration. Id. If the text of the statute is clear and unambiguous, it is not subject to judicial interpretation and must be held to mean what it plainly says. Id. We presume that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals. Id.
[¶13] Arguing that he cannot meet the statutory definition of a home improvement supplier, Barnett contends: "the home improvement supplier in the case before the court was Mark Sellers," who was the "owner of the company," who "negotiated the terms of the home improvement contract which was ultimately a written proposal," and who "discussed the scope of the work" as well as "the price of the work and the payment schedule for the work once complete." Appellant's Brief at 9. The plain text of the definitional statute includes one "who engages in or solicits home improvement contracts," as opposed to limiting its scope to a business owner or proprietor. I.C. § 35-4-6-6. Thus, Barnett's principal role as a day laborer/driver is not dispositive. The statute does not focus upon the nature of home improvement tasks performed. It focuses upon an active role in contracting, i.e., engaging in contracting or soliciting a contract. Barnett is not categorically excluded from the scope of the definition of a home improvement supplier because he was a laborer as opposed to an owner. We thus turn to consider the sufficiency of the evidence offered to establish that Barnett engaged in criminal conduct relating to a home improvement contract.
Sufficiency of the Evidence
[¶14] As previously stated, it was alleged by the State that Barnett "entered into a home improvement contract" and "did knowingly misrepresent a material fact." (App. Vol. II, pg. 11.) When reviewing the evidence in support of a conviction, we consider only the probative evidence and reasonable inferences most favorable to the trial court's judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995). The decision comes before us with a presumption of legitimacy, and we do not substitute our judgment for that of the factfinder. Id. We do not assess the credibility of the witnesses, and we do not reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal is appropriate only when no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.
[¶15] Here, the evidence is that Sellers negotiated with the Frys and then filled out a Contractors Invoice notating that it was a contract, promising a deck (with a pergola) and a patio for $7,600.00. Sellers provided a signature line for Barnett. The homeowner indicated that she and her husband would have been unwilling to sign without a counter signature. However, there is no evidence that Barnett actually signed the document, leaving us to speculate as to whether he did so, someone else did so, or no one signed for Mark's Designs. The testimony favorable to the judgment shows that all the promised payments were received but not all the promised work was performed.
[¶16] At bottom, the State failed to establish that Barnett solicited a contract, participated in the negotiation of its terms, or personally made a misrepresentation. For unknown reasons, Sellers created a signature line for Barnett, but State's Exhibit 4 is unsigned. Accordingly, the State did not establish beyond a reasonable doubt that Barnett personally "enter[ed] into a home improvement contract." I.C. § 35-43-6-12(a). But Barnett assisted Sellers in the performance of the contract, in that Barnett accepted the $3,800.00 check, cashed it, and gave the money to Sellers. According to the State, this is sufficient to sustain Barnett's conviction as an accomplice to home improvement fraud.
[¶17] The State observes that a "person can be convicted as an accomplice despite only being charged as a principal," Appellee's Brief at 17, and directs our attention to Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). In Castillo, the Court observed that the appellant's actions had not been "causally linked" to the victim's death but determined that she had been properly convicted as an accomplice to murder rather than a principal. Id. at 465. In reaching its decision, the Court also addressed the requirement of scienter. Because the appellant had been charged with killing the victim "knowingly" or "intentionally," the State was obliged to establish that the appellant had acted with a "conscious objective" to kill or with awareness of a "high probability" that her actions would result in the death of the victim." Id.
[¶18] The requisite proof of the offense of Home Improvement Fraud involves a "knowing" misrepresentation of a material fact relating to terms of a home improvement contract. I.C. § 35-43-6-12. "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." I.C. § 35-41-2-2(b). There is evidence from which a factfinder could reasonably conclude that Barnett knowingly cashed a $3,800.00 check and knowingly gave the money to Sellers. But this conduct took place after the contract was formed. There is no evidence that Barnett knowingly made a misrepresentation of a material fact relating to a home improvement contract or knowingly assisted Sellers in making such a misrepresentation. The State did not present sufficient evidence to support Barnett's conviction as an accomplice.
The State did not charge Barnett under the statutory subsection applicable to one who "promises performance that ... [he] does not intend to perform or knows will not be performed." I.C. § 35-43-6-12(a)(3).
[¶19] Moreover, it was Sellers (the company owner) who negotiated a contract to receive $7,600.00 from the Frys in exchange for building a deck with a pergola and a patio. However, as found by the trial court, Barnett's involvement was limited to the value received in exchange for the proceeds from the $3,800.00 check. The work crew, which at times included Barnett, built a deck with the materials purchased with these proceeds. Fry testified that the deck was 85% to 90% complete. Additionally, the State did not produce any evidence to establish that the work that was done or the materials that were purchased was substantially less than the $3,800.00. Absent testimony from a skilled tradesman, or another witness, to establish the value of the materials and work at any given stage, there is no inference that can be drawn; rather, there can only be speculation as to whether the value conferred was more or less than the value received. Barnett's conviction cannot stand.
Conclusion
[¶20] The statutory definition of "home improvement supplier" does not by its terms exclude persons other than business owners or proprietors. However, Barnett's conviction for Home Improvement Fraud must be reversed due to insufficient evidence that he entered into a home improvement supplier contract, knowingly made a misrepresentation of material fact relating to the terms of a home improvement contract, acted with the requisite criminal intent, or in fact deprived the homeowners of value.
[¶21] Reversed.
Bradford, J., and Foley, J., concur.