Opinion
NO. 19-KA-158
10-23-2019
STATE of Louisiana v. Michael PINNER
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Zachary P. Popovich, Jennifer C. Voss COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL PINNER, Holli A. Herrle-Castillo
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Zachary P. Popovich, Jennifer C. Voss
COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL PINNER, Holli A. Herrle-Castillo
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
MOLAISON, J.
Appellant appeals his conviction for one count of residential contractor fraud. For the reasons that follow, we affirm defendant's conviction and sentence and further remand for the correction of errors in the district court record.
PROCEDURAL HISTORY
On October 21, 2016, defendant/appellant, Michael Pinner, was charged by the Jefferson Parish District Attorney's Office with one count of residential contractor fraud, a violation of La. R.S. 14:202.1(A)(1). Defendant pled not guilty and proceeded to a jury trial on January 22. 2019, after which he was unanimously found guilty as charged. The trial court thereafter denied defendant's motion for new trial and motion for post-verdict judgment of acquittal on February 4, 2019. On that same date, the trial court sentenced defendant to three years of active probation and ordered him to pay $6,500.00 in restitution. Defendant did not object to his sentence. This timely appeal follows.
The State later amended the original bill of information to change the date of the alleged offense as well as the amount defendant defrauding the victims of.
FACTS
The victims in this case, Lisa and Anthony Turley, testified at trial that in November of 2015 they purchased a home in Metairie with the intention to complete a renovation prior to occupying the property. Because Mrs. Turley had worked with defendant on a prior renovation project, she contacted and hired him to replace the existing windows in the home. On December 5, 2015, defendant went to the Turleys' house and took measurements of all windows, informing the couple that he would follow up by providing cost estimates for vinyl and aluminum frames. After making their selection of frame material on December 29, 2015, the Turleys signed a written contract with defendant for the purchase of the windows as well as the cost of installation. At that time, the Turleys tendered an initial payment to defendant of $3,500.00, and defendant told the Turleys that the windows would be available for installation in three to four weeks.
On January 20, 2016, Mrs. Turley received a text message from defendant informing her that their final payment was due, and that he could begin installing the windows during the following week. On January 29, 2016, Mrs. Turley tendered a check to defendant in the amount of $3,000.00. In the weeks that followed, defendant did not immediately reply to Mrs. Turley's text messages which inquired about the timeline for installment of the windows. Defendant finally replied to Mrs. Turley on February 18, 2016, stating that window shipment had not arrived and therefore he did not have an estimated installation date. Mrs. Turley responded that defendant previously claimed that the windows had already come in, which was why the final payment became due. Mrs. Turley testified that defendant did not reply to her question about the delivery date of the windows, nor did he send any additional texts after February 25, 2016. She further testified that defendant never delivered the windows or refunded her money.
Mr. Turley testified at trial that in March of 2016, he directly contacted the window manufacturer, Don Young, because defendant failed to communicate about the status of the windows. It was then that the Turleys discovered that the window order had not yet been placed. Mr. Turley attempted to contact defendant to request the return of their money to no avail. Upon the advice of the Turleys' attorney, on March 14 and 28, 2016, defendant was mailed formal demand letters requesting a refund. The March 28, 2016 certified letter was received by defendant on April 2, 2016, as evidenced by defendant's signature. On April 4, 2016, Mr. Turley reached out to Dean Palazzalo, the owner of Cool-Vue Aluminum, who was the local window distributor that defendant used. Mr. Turley testified that he called Mr. Palazzalo to inform him of the situation involving defendant and to advise him that he did not intend on doing business with defendant. Mr. Turley recalled that on April 12, 2016, defendant sent him a text message saying, "[w]e need to get together to resolve this matter. I'm looking for an appointment," to which Mr. Turley replied, "[y]ou may submit cashier's check/funds to my attorney." Thereafter, sometime in May of 2016, Mr. Turley received a voicemail from a man named "Keith Williams," whom Mr. Turley did not know, stating, "I've got some windows for you." Mr. Turley did not return the phone call. Consistent with the testimony of Mrs. Turley, Mr. Turley confirmed that, at the time of trial, they had not received a full refund of their money from defendant, and the new windows were never installed by defendant.
Deputy Shane Rivolo of the Jefferson Parish Sheriff's Office testified that, in April of 2016, he was assigned to investigate a case of contractor fraud involving defendant after the Turleys filed a complaint. Deputy Rivolo detailed the findings of his investigation, which closely tracked the trial testimony of the Turleys. Deputy Rivolo stated that there was no evidence that the Turleys had extended the completion date of their contract past forty-five days. Deputy Rivolo was also provided with a signed copy of a receipt from a certified demand letter dated April 2, 2016, which was served on defendant by the Turleys' attorney requesting return of their money. Having failed to perform the work or return the Turleys' money, a warrant was issued for defendant's arrest for contractor fraud.
Defendant called two witnesses at trial. Dean Palazzalo testified that he had known defendant for 22 years from working with defendant in the window business. He recalled that defendant placed a window order for the Turleys' home on April 4, 2016. Prior to that date, however, in February or March of 2016, Palazzalo received a phone call from Mr. Turley, who indicated that he was frustrated with defendant and did not want defendant to perform the work for him. Palazzalo stated that Mr. Turley advised him not to order the windows and that he had called the Don Young manufacturing company and attempted to stop the order. At the time of their conversation, defendant had not yet paid Palazzalo a deposit for the windows, and Palazzalo had not yet placed the window order. Palazzalo stated that despite his conversation with Mr. Turley, he still ordered the windows on April 4, 2016, because defendant told him he had it "worked out." Palazzalo did not know what happened to the windows after they left his shop in early May of 2016.
Keith Williams testified that he worked for defendant and attempted to deliver windows to the Turleys. When Williams contacted Mr. Turley by phone, Mr. Turley told him that if he did not have all ten of his windows that were ordered, he did not want the eight that he had. According to Mr. Williams, Mr. Turley then called him back a few weeks later to inquire about the remaining two windows, at which time Mr. Williams informed him that he still did not have the other two windows yet. Mr. Williams could not remember what date, time, or year he spoke to Mr. Turley.
LAW AND ANALYSIS
Appellant's sole assignment of error on appeal is whether the evidence presented at trial was sufficient to uphold his conviction.
The standard of review for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell , 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.
Under the Jackson standard, a review of a criminal conviction for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. State v. Flores , 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, both admissible and inadmissible, to determine whether the evidence is sufficient to support the conviction. State v. Hearold , 603 So.2d 731, 734 (La. 1992).
In the instant case, defendant was charged with one count of residential contractor fraud, which states, in relevant part:
A. Residential contractor fraud is the misappropriation or intentional taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations by a person who has contracted to perform any home improvement or residential construction, or who has subcontracted for the performance of any home improvement or residential construction. A misappropriation or intentional taking may be inferred when a person does any of the following:
(1) Fails to perform any work during a forty-five-day period of time or longer after receiving payment, unless a longer period is specified in the contract.
Here, the State was additionally required to prove that the misappropriation or intentional taking amounted to a value of one thousand five hundred dollars or more. La. R.S. 14:202.1(C)(3).
On appeal, defendant does not dispute that he entered into a contract with the Turleys. However, he maintains that the State failed to sufficiently prove he had the requisite specific intent to misappropriate or take anything of value from them by fraudulent conduct. Specifically, defendant argues that the testimony at trial established that he took possession of the windows on April 4, 2016, and attempted to have them installed. He further notes that while this date was outside the forty-five-day "inference" period set forth under subsection (A)(1) of La. R.S. 14:202.1, the statute does not require that work be initiated within any particular time frame if the (A)(1) inference is rebutted. Thus, he asserts that because he contacted the Turleys in an attempt to resolve the problem, ordered the windows, received the windows, and tried to schedule delivery of the windows, he negated the inference that he misappropriated the Turleys' money and/or had the specific intent to take their money without supplying the windows and performing the work agreed upon.
While the statute does provide that a misappropriation or intentional taking may be inferred when a person "fails to perform any work during a forty-five-day period of time or longer after receiving payment, unless a longer period is specified under the contract" it is incumbent on the trier of fact to determine whether it will apply the inference or not under the facts presented. Here, the State presented evidence at trial to show that defendant and the Turleys entered into a contract on December 29, 2015, for the installation of windows at their residence for a total cost of $7,600.00. Two separate payments were made to defendant by the Turleys totaling $6,500.00, with the last payment being received by defendant on January 26, 2016, and the remainder due at the time of installation. Defendant acknowledges that it was not until April 4, 2016, a time period admitted by defendant to be outside the forty-five-day window provided under La. R.S. 14:202.1, that he took possession of the windows and allegedly attempted to have them installed. Thus, defendant performed no work under the contract on the Turleys' residence from the time of payment on January 29, 2016 until April 4, 2016. There was also no evidence that the Turleys had extended the completion date of their contract past forty-five days. Accordingly, we find that the jury was free to infer, based on the passage of the forty-five days, that defendant misappropriated or intentionally took money from the Turleys amounting to a value of $6,500.00.
In a similar case, State v. Folse , 2018-0153 (La. App. 1 Cir. 9/21/18), 258 So.3d 188, 198, writ denied , 2018-1743 (La. 4/22/19), 268 So.3d 300, the defendant's conviction was upheld on appeal when the record established that defendant entered into a contract with the victims to do a specific job, that he received a $4,000 down payment from the victims and failed to perform any work in excess of a 45 day period after receiving payment.
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Moreover, based on the verdict, it appears the jury rejected defendant's hypothesis of innocence that the Turleys attempted to sabotage the contract and/or that any delay was due to circumstances beyond his control, which he alleges he attempted to remedy in April of 2016. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley , 03-384 (La. App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writs denied , 03-2745 (La. 2/13/04), 867 So.2d 688 ; 08-1951 (La. 1/30/09), 999 So.2d 750. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact-finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway , 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
We therefore find no merit in defendant's assignment of error.
ERROR PATENT REVIEW
We reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following matters are noted.
First, the record fails to reflect that defendant was advised by the trial court of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See , State v. Perez , 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864. Accordingly, we advise defendant that he has two years after the judgment of conviction and sentence has become final to seek post-conviction relief.
Next, the sentencing minute entry indicates that defendant pleaded guilty under article 893, that said plea was acceptable to the State, that the court advised defendant of his Boykin rights, that his sentence could be used to enhance a future conviction, and that a waiver of rights form was executed and filed into the record. This information is inaccurate. As detailed above, defendant did not plead guilty in this case but, rather, was found guilty by a jury of the charged offense. Further, as reflected later in the sentencing minute entry, imposition of defendant's sentence was deferred pursuant to La. C.Cr.P. art. 893.
Generally, when there is a discrepancy between the transcript and the minute entry, the transcript governs. State v. Lynch , 441 So.2d 732, 734 (La. 1983). This Court has previously remanded a case for correction of the sentencing minute entry in its error patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ). Accordingly, we remand the matter to the trial court for correction of the sentencing minute entry regarding the discrepancies noted in this opinion.
DECREE
For the foregoing reasons, defendant's conviction and sentence are affirmed. The matter is remanded for correction of errors in the district court record.