Summary
relying on Rivers to conclude that the State proved theft by deception where the defendant received two checks for materials and did not use the money to pay for the materials, but not addressing the “property of another” language of the statute
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No. 2-793 / 01-1371
Filed August 27, 2003
Appeal from the Iowa District Court for Scott County, James E. Kelley, Judge.
Defendant Michael Burkle appeals from his conviction for theft by deception in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Habhab, Snell, and Brown, S.J
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
Defendant Michael Burkle appeals from his conviction for theft by deception in the first degree. See Iowa Code §§ 714.1(3) and 702.9(5) (2001). The case was tried to the court. The only issue raised is a question of the sufficiency of the evidence. We affirm.
On our review we consider all of the evidence not just the evidence that supports the verdict. The verdict must be supported by substantial evidence. That evidence is such that could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).
The case involves defendant, working as a home improvement contractor, and his failure to complete two jobs for Essie and Henry Randle. Defendant was paid by the Randles about one-half of the $12,704 cost for both projects. The first project was siding the home and garage. A later agreement was made to replace windows. The labor and materials for the siding job amounted to about $5532. For labor and materials to replace the windows would be $7172. Together the two jobs of $12,704 exceeded the statutory amount of $10,000 to constitute first-degree theft. See Iowa Code § 712.2(1) (2001).
Henry Randle, the homeowner, testified that he hired Burkle because he was satisfied with his work when he was employed by another contractor to repair his basement and bathroom. Burkle as a self-employed contractor said he could do the siding job cheaper. After agreeing to the siding contract, Burkle commenced work by tearing off the old siding on the garage. Before proceeding further, Burkle proposed a contract to replace the home's windows. Randle agreed to the offer.
For the siding job, Randle gave Burkle a check for $6,352.50. Randle said, "he had told me he needed the money right away because he had to have the materials on order. He made the representation he had ordered the materials." Randle gave him the check on Wednesday. Burkle said the material would be out Thursday. No material was delivered. Randle called Burkle who said the material would be out Friday. It was not delivered then. Randle contacted the police. Talking to Burkle from the police station, he was told the material would arrive Monday. Burkle showed up on Monday along with some siding supplies from Vogel Siding Company. Randle noted there was not enough siding to do the whole house.
Burkle said the windows had to be done before the siding. Randle borrowed the money from his bank for the windows. Burkle told him he needed to get the windows paid for and so needed a check. Randle gave him a check for the windows. Burkle said he was going to pay for the windows and would be right out with them. He said they would be Pella windows. The windows were never delivered. Later, Randle found out the windows had never been ordered.
Burkle offered several explanations. He was sick, had problems with his girlfriend, had drug and alcohol problems and attended treatment part-time.
The money was not used to pay for materials. Vogel Wholesale repossessed the siding for nonpayment. Burkle explained it was common practice to use job money to live on and to pay other bills. This is what he did with the Randle's first check. The second check in the amount of $5552 was cashed. Some of the money was spent in a night of drinking, ending when Burkle blacked out. When he woke up at home all but a few hundred dollars was gone.
The State and defendant agree on the law but disagree on its application. Defendant believes the case of State v. Tovar, 580 N.W.2d 768 (Iowa 1998), applies. In that case our supreme court held that the State failed to prove a charge of theft by deception when the defendant did not complete two home improvement contracts. Defendant did not disclose his shaky financial situation to the buyers but that did not amount to a deceit. Later, in State v. Rivers, 588 N.W.2d 408, 411 (Iowa 1998), the court distinguished Tovar. In Rivers, the evidence of intent was substantial. Rivers used various ploys and reasons to persuade a customer to make additional and premature payments; said he had to have the money for payroll or to buy tools and equipment. He would get more money from the customer by finding more projects on the premises that needed to be done. See generally State v. Hogrefe, 557 N.W.2d 871 (Iowa 1996).
The trial court as fact-finder ruled that the State proved theft by deception in that the defendant received two checks from the Randles for materials and did not use the money to pay for materials to be used on the job. The court found that payment for the materials was an implicit part of the contract.
On our review, we hold the case is controlled by the Rivers case. There is substantial evidence to support the trial court's findings. We therefore affirm.