Opinion
No. 111798.
07-31-2015
STATE of Kansas, Appellee, v. Jeff T. VAP, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeff T. Vap appeals his conviction and sentence arising from four counts of fraud. On appeal, Vap first contends that the district court erred by denying his motion for judgment of acquittal. But the record reflects that he waived such a challenge on appeal by not renewing his motion at the close of all the evidence. Regardless, we find that there is substantial evidence in the record upon which a reasonable factfinder could have found Vap guilty of theft by deception. Vap also contends that the district court illegally imposed a 36–month probation term. However, because criminal restitution serves to rehabilitate a guilty individual it was appropriate for the district court to impose a probation term longer than 12 months. Thus, we affirm.
Facts
On September 18, 2012, the State charged Vap—a general contractor—with four counts of felony theft by deception. All of the counts arose out of Vap's business dealings with customers between September 2011 and May 2012. Three of the customers lived in Wichita, and one of the customers lived in Goddard.
Agreement with Nelda Hoerman
On September 17, 2011, Nelda Hoerman called Vap to inquire about repairs to her roof, guttering, deck, and siding, which had been damaged in a recent hail storm. Vap agreed to do the work and came to Hoerman's home with a proposed contract 2 days later. Vap told Hoerman that he had some other jobs to complete first but told her that he would be able to get to them “right away.” The agreement was dated September 20, 2011, but neither Hoerman nor Vap signed the agreement. It listed the total costs at $14,703.66. Vap never told Hoerman when he would begin working. Nine days later, Hoerman gave Vap a check for $3,200.
Eventually, Vap called Hoerman to ask if she had received more money from her insurance company for repairs, and she told him that she had. Vap asked her to pay additional money, and when Hoerman protested, he stated that he would not deliver materials or begin work until he was paid the additional amount she had received from the insurance company. On October 13, 2011, Hoerman paid Vap an additional $3,657.70, but Vap would not give a specific date on which he would begin the project.
After leaving several messages over the course of 2 weeks, Hoerman eventually reached Vap on October 31. She told him that she was concerned about the approaching winter weather and the state of her home, but Vap assured her that he would be able to complete the job and that recent weather had delayed his other work. Three weeks passed and Vap did not begin work, so Hoerman sent him a certified letter on November 21, 2011, informing him that she had hired someone else to complete the work and demanding a full refund. After receiving the letter, Vap called Hoerman and claimed that he had left her messages and that he could not refund the money. However, Hoerman later claimed that she had never received a message from Vap and that her phone service had never been interrupted during this time. Hoerman thereafter contacted the Goddard Police Department to report the incident.
Agreement with Charlotte Tennant
In January 2012, Charlotte Tennant—who was living with and caring for her mother—contacted Vap because she wanted to add a bedroom and bathroom to her mother's house. On January 6—less than a week after Tennant contacted Vap—he came to the house and provided an estimate of $25,000. After she stated that she could not afford that amount, Vap met Tennant at the house on January 12 and prepared an estimate of $15,000. However, Tennant told him that she could still not afford the amount.
Over the course of the next few months, Vap called Tennant between 15 and 20 times, sometimes asking if she had obtained any money. Tennant eventually acquired $10,000 after her mother sold mineral rights to land the mother owned in Oklahoma. On March 8, Tennant contacted Vap and told him of the money, and he came over within the hour and drafted an agreement for $10,000. The terms of the agreement stated that Tennant would be responsible for several aspects of the work. It also stated that she was to pay him $8,000 immediately and $2,000 upon completion of the work. Vap and Tennant signed the agreement that day, and on March 8, 2012, Tennant gave Vap a cashier's check for $8,000.
Vap told her that he would begin the work later that week and that the project would take approximately 6 weeks to complete. After Vap did not show up to begin the work, Tennant called him between 10 and 15 times to try and locate him. After 5 days of attempting to contact him, Vap answered a call and told her that he was too busy to start right away but that he would be able to start 1 week after he initially stated he could begin. However, Vap did not arrive the next week. From March until June 2012, Vap repeatedly promised to begin the work the following week but failed to do so.
Tennant began demanding that Vap return the money and eventually threatened to sue him. Vap responded that he could not return the money because he had already spent it. On June 7, Vap arrived at the house with a concrete saw and told Tennant that he was going to begin the work. Vap was at the house for about 10 minutes, during which time he cut a small section of concrete. After doing so, he promised that he would be back the next week, but Vap never returned or contacted Tennant despite her calls. Tennant eventually reported Vap to the district attorney's office.
Agreement with Michael Melton
On March 30, 2012, Michael Melton called Vap because he wanted to add a patio to his backyard. That same day, Vap arrived at Melton's home, provided an estimate, and signed an agreement with Melton to install a patio. The agreement provided for a total cost of $2,494. Melton gave Vap $1,000 in cash the same day, and Vap told him that he would begin the work on April 9 and that he would complete the job within a day-and-a-half.
Vap did not arrive on April 9, and Melton called him the following day. Vap told Melton that he was running late but that he would start the work the following day. This pattern continued for several weeks, until Vap ceased answering Melton's calls. Eventually, Melton tried to call Vap but found that Vap had blocked his phone number.
On April 17, Melton was able to reach Vap, and Vap assured him that he was Vap's next job. Vap also told him that he was sending out equipment and that he would begin work the following day. The equipment arrived that day, but it remained at Melton's house for the next week; the work never began. Melton noticed that one of the pieces of equipment—a Volvo rental backhoe—displayed Volvo's contact information, so he contacted Volvo to inquire about the backhoe. Within the hour, Volvo repossessed the backhoe. Melton then called Vap again and left a message informing him that the backhoe had been repossessed and demanding a refund.
In late April, Vap arrived at Melton's home with another individual, two shovels, and a bucket. Melton—who was not present when Vap arrived—found Vap in his backyard with another person. Melton told Vap not to begin the work because he had fired him, and he demanded a refund. At some point, Vap began yelling and Melton's neighbor came over to investigate. Although he did not brandish the weapon, Melton's neighbor was wearing a handgun at his waist.
Before leaving Melton's home, Vap told him that he would return his money the following morning. Vap did not arrive the next morning. When Melton texted him, Vap stated that he was out of town but that he would call when he returned. Vap never returned Melton's money or did any work.
Agreement with Jennifer Harms
On April 17, 2012, Jennifer Harms called Vap regarding repairs to her driveway. Two days later, the two met at Harms' home where Vap presented her with a contract to improve her driveway. The two signed the contract, and Harms paid him a deposit of $2,325 the same day. On April 23, Harms called Vap to discuss repairs to her roof as well as some improvements to her backyard. That evening, the two met, and Vap drafted an agreement to repair her roof and landscape her backyard, which both Vap and Harms signed. Harms paid Vap an additional $4,612.50 that evening, and Vap told her that he would be able to begin work on April 26 or 27.
When Vap did not arrive, Harms called him on April 27. Vap claimed that he thought he had called Harms, and the two agreed to meet the following day to look at rock samples. When Vap did not contact Harms the following day, Harms called and left Vap a voice message. Two days later, Harms called again and left another message. Vap returned her call the next day and told her that he would begin work on Thursday or Friday, but he did not arrive or notify Harms that he was unable to begin the work.
Eventually, Vap texted Harms to apologize and to tell her that he was going through a personal crisis. Vap left some shingle samples at her home the next day, and after she selected the shingles she wished to use, Harms contacted Vap to tell him where he could pick up the samples. However, Vap never arrived.
On May 12, 2012, Harms learned through a friend and later verified that Vap had received an “F” rating from the Better Business Bureau. Harms texted Vap and told him that she wished to discontinue their relationship and that she wanted him to refund her money. Vap responded, stating that he was going to do a good job and assuring her that he would bring materials to her house that afternoon. When she told him that she had discovered that his contracting license had been revoked, Vap did not respond.
Later that afternoon, seven rolls of black tar paper and two boxes of roofing nails were delivered to her home, but no other materials described in the agreement arrived. Vap never returned the money, and the work was never completed.
Procedural History
The district court conducted a 4–day bench trial beginning on June 12, 2013. Hoerman, Tennant, Melton, and Harms as well as Richard Meier—the Building Administrator for the City of Wichita—and Verlyn Bud Lett—the Director of Building and Construction for the Metropolitan Area of Building and Construction Department—testified for the State. Meier testified that Vap's contractor license had expired on October 15, 2010, and Vap did not reactivate the license until November 1, 2012. During this time when his license was expired, Vap was neither allowed to work as a contractor nor apply for the requisite permits for jobs in Wichita city limits. Vap, however, was licensed to work in Sedgwick County. The State presented evidence that Tennant, Melton, and Harms lived in Wichita, while Hoerman lived in Goddard, which is outside of Wichita city limits but within Sedgwick County.
Meier also testified that after reviewing the city database, he determined that Vap did not obtain required permits to perform the jobs for the three individuals who lived in Wichita. Lett testified that Vap never obtained a permit to perform the work on Hoerman's home in Sedgwick County.
The State introduced Vap's business card that stated he was a “Licensed General Contractor.” The State also introduced a photograph of a yard sign left at Harms' home that stated Vap's business was “Licensed, Bonded, [and] Insured.” At the close of the State's case, Vap moved for judgment of acquittal on all four counts, which the district court denied.
Vap then proceeded to call four witnesses. The first witness—Ronald Hill—was a supplier who had worked with Vap. He attempted to testify about alleged business records that would have indicated that Vap ordered materials for the jobs in question, but the district court denied admission of the documents because they did not qualify as business records. The second witness, Jerry Proctor—who was Hoerman's neighbor—testified that he had hired Vap to complete a job. Hoerman stated that Vap had attempted to repay some of the contract price once Vap had realized he was unable to finish the job.
The third witness was a detective with the Wichita Police Department who testified about a report Vap made regarding the argument at Melton's home where Melton's neighbor arrived with a handgun at his waist. Lastly, Vap testified on his own behalf. He stated that when he entered into the work agreements, he never intended to take the money without performing the work. During cross-examination, Vap stated that he was not licensed to work in Wichita. The State later called three rebuttal witnesses. At the close of all the evidence, Vap did not renew his motion for judgment of acquittal.
The district court eventually found Vap guilty of all four counts of theft by deception. In doing so, it noted that the key issue was whether Vap intended to perform the work at the time he made the contracts. To that end, the district court found that Vap's conduct with the four victims was consistent—he would immediately respond to calls for work but then become nearly unreachable once he had been paid. Moreover, in three of the four jobs, he was unlicensed to do the work. Lastly, it did not find Proctor's testimony persuasive since Vap attempted to refund a portion of the money Proctor had paid him only after the State had charged him with theft.
During sentencing on July 24, 2013, the district court imposed a 12–month underlying prison sentence and placed him on 36 months' probation. The district court postponed its ruling on restitution, and on August 20, 2013, it established restitution as $1,000 owed to Melton, $8,000 to Tennant, $6,857.70 to Hoerman, and $6,937.50 to Harms for a total amount of $22,795.20.
Thereafter, Yap timely appealed.
Analysis
Motion for Judgment of Acquittal
In reviewing a district court's decision to deny a defendant's motion for a judgment of acquittal, we consider all the evidence in the light most favorable to the State and determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In doing so, we do not reweigh the evidence, assess credibility, or otherwise resolve conflicting evidence. See State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013).
The State asserts that Vap waived any alleged error in denying his motion for judgment of acquittal when he proceeded to present evidence after the district court denied his motion for judgment of acquittal. The Kansas Supreme Court has held that when a defendant unsuccessfully moves for judgment of acquittal at the close of the State's evidence and then proceeds with the presentation of evidence, the defendant waives any error in denial of the motion. See State v. Blue, 225 Kan. 576, 578, 592 P.2d 897 (1979).
In 1989, our Supreme Court modified the rule to provide that a defendant does not waive error if he or she only presents rebuttal evidence that is confined to the substance and credibility of witnesses for the State or a codefendant and does not attempt to refute any elements of proof adduced in the State's case. State v.. Copes, 244 Kan. 604, 610, 772 P.2d 742 (1989). In addition, “[i]f the motion for acquittal is renewed after the close of all of the evidence, the trial court should consider all of the evidence in ruling upon that motion.” 244 Kan. at 607.
The Court in Copes described the rationale behind the rule as follows:
“The doctrine's operative principle is not so much that the defendant offering testimony ‘waives' his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the State's case, he cannot insulate himself from the risk that the evidence will be favorable to the State. Requiring the defendant to accept the consequences of his decision to directly challenge the State's case affirms the adversary process.” 244 Kan. at 610.
As an intermediate appellate court, panels of this court are bound to follow precedent established by the Kansas Supreme Court unless there is an indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). In Vap's reply brief, he acknowledges the rule but contends that the Supreme Court has since abandoned it. However, at least two panels of this court have found the waiver rule—as modified in Copes —continues to be the law of Kansas. See State v. Mitchell, No. 108,912, 2014 WL 113441, at * 4 (Kan.App.) (unpublished opinion), rev. denied 301 Kan. –––– (2014); State v. White, No. 92,373, 2005 WL 2138737, at *2 (Kan.App.) (unpublished opinion), rev. denied 280 Kan. 991 (2005). We agree.
In the present case, Vap asserted his motion for acquittal at the close of the State's case. After the district court denied the motion, most of the witnesses called by Vap attempted to establish that he intended to complete the work at the time he entered into the agreements with the victims and obtained money from them. Because intent is an essential element of theft by deception, we find that Vap was required to reassert his motion for acquittal at the close of all the evidence. K.S.A.2014 Supp. 21–5801(a) ; see State v. Mitchell, 262 Kan. 434, 437, 939 P.2d 879 (1997) ; Copes, 244 Kan. at 6. We conclude, therefore, that Vap waived his right to challenge the district court's denial of his motion for judgment of acquittal.
Sufficiency of the Evidence
Vap also contends that the State did not present sufficient evidence to convict him of theft by deception. Theft by deception is an act “done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services .... [by] obtaining control over property or services, by deception.” K.S.A.2011 Supp. 21–5801(a)(2). To establish theft by deception, the State had to establish that Vap obtained control over the victims' property by means of a false statement or representation; that the deception, in fact, deceived the victims; and that the victims relied upon the false representation or statement in relinquishing control of their property to Vap. See State v. Schultz, 252 Kan. 819, 848–49, 850 P.2d 818 (1993) (citing State v. Rios, 246 Kan. 517, 526–27, 792 P.2d 1065 [1990] ); PIK Crim. 4th 58.010.
“ ‘Deception’ means knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind. Deception as to a person's intention to perform a promise shall not be inferred from the fact alone that such person did not subsequently perform the promise. Falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive reasonable persons, is not deception.” K.S.A.2011 Supp. 21–5111(e).
Vap characterizes his actions as merely breaches of contracts that do not give rise to criminal liability. In doing so, he cites to several cases from other jurisdictions that have adopted similar—albeit more detailed—statutory definitions of “deception.” Two of the cases involve a contractor who—unlike Vap—either began or completed the project. See Coleman v. Maryland, 196 Md.App. 634, 656, 11 A.3d 326 (2010) (contractor applied for several permits, hired an individual to process permits, and retained engineers who filed plans, received comments, and responded to them); State v. Morse, 2008 S.D. 66, ¶ 5, 6 753 N .W.2d 915 (2008) (contractor repaired the kitchen ceiling and wall, installed plumbing fixtures, removed water heater and installed a new one, ran a freezeproof spigot outside the house, installed a bathroom vent with vent cover, custom built a bathroom cabinet at no extra cost, mounted wainscoting and crafted a surrounding shelf with rope lighting, put in a faux tin ceiling, and installed water pipes and a new drain stack).
In State v. Tovar, 580 N.W.2d 768, 770 (Iowa 1998) —another case cited by Vap—the Iowa Supreme Court found that “the State had proved nothing more than that Tovar had failed to perform, a fact insufficient by itself to prove intent.” State v. Rivers, 588 N.W.2d 408, 411 (Iowa 1998). Certainly, it is also true in Kansas that a failure to perform the work, by itself, is insufficient to demonstrate deception. See K.S.A.2011 Supp. 21–5111(e). But in the present case, a review of the record reveals that Vap's conduct extends beyond simply failing to perform the work for which he was hired.
Here, Vap established start dates with three of the four victims but failed to show up to work. In addition, he repeatedly made promises to begin at a later date, which he never fulfilled. Interestingly, the record reflects that Vap responded quickly when one of the victims wished to engage his services, but he was nearly unreachable after he had taken money from his victims. We conclude, therefore, that after viewing all the evidence in the light most favorable to the State, a rational factfinder could have found the defendant guilty of theft by deception beyond a reasonable doubt.
Length of Probation
Vap next contends that the district court imposed an illegal sentence of 36 rather than the statutory limit of 12 months' probation. Whether a sentence is illegal is a question of law subject to unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). An illegal sentence is one that (1) is imposed by a court that lacks jurisdiction; (2) does not conform to the statutory provision, either in character or the term of the punishment imposed; or (3) is ambiguous with regard to the time and manner in which the defendant is to serve it. State v. Bradford, 299 Kan. 288, 289, 323 P.3d 168 (2014).
During the sentencing hearing, the State requested 5 years' probation so that Vap would have “ample opportunity and time to pay back restitution to the victims.” Vap, however, claimed that the proper statutory period was 12 months. While imposing probation, the district court offered the following rationale when it imposed a 36–month term:
“With regard to the term of probation of five years requested by the State, I do have a statutory authority to extend probation when the statutory limit is 12 months, and I will do that in this case. What I'm going to do is extend for 36 months rather than 60 months. With the understanding that at the end of that 36 months if there still is restitution payments that are owed, we can then extend it for another year. And after that, another [ ] year again. So I am trying to find some middle ground[,] and I would hope that perhaps that in this 36–month period that you could pay off some or if not all of the restitution claims.
....
“So taking into account the nature and circumstances of these crimes, the history, character, and condition of the defendant, and the lowest minimum sentence, which in the opinion of the Court is consistent with the public safety, the needs of the defendant: ....“ (Emphasis added.)
Initially, the State asserts that this court lacks jurisdiction to consider Vap's probation term. K.S.A.2011 Supp. 21–6608(c)(5) provides that an increase in a probation term “shall not be considered a departure and shall not be subject to appeal.” In State v. Whitesell, 29 Kan.App.2d 905, 33 P.3d 865 (2001), a panel of this court found that such language deprived the district court of jurisdiction to modify a defendant's sentence. 29 Kan.App.2d at 908. Shortly thereafter, a different panel of this court found in State v. Jones, 30 Kan.App.2d 210, 214, 41 P.3d 293 (2001), that a district court erred by not stating the reasons for imposing a longer probation term. On March 20, 2002, the Kansas Supreme Court indicated that Jones is a “controlling appellate decision” State v. Shaw, No. 85,816, Order of Summary Reversal (filed March 20, 2002). Similarly, in State v. McIntyre, 30 Kan.App.2d 705, 708, 46 P.3d 1212 (2002), a panel of this court found that Whitesell “has impliedly been overruled by the Supreme Court.” McIntyre, 30 Kan.App.2d at 709 ; see State v. Jenkins, No. 94,874, 2006 WL 2440010, at *2 (Kan.App.2006). Accordingly, we find that we have jurisdiction to consider this issue.
It is undisputed that the guidelines generally require a probation period of up to 12 months. See K.S.A.2011 Supp. 21–6608(c)(3). However, this does not end our analysis because K.S.A.2011 Supp. 21–6608(c)(5) permits a district court to impose a longer probation period if it “finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the” standard probation term. (Emphasis added.) Moreover, “restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence.”State v. Applegate, 266 Kan. 1072, Syl. ¶ 2, 976 P.2d 936 (1999) ; State v. Rhodes, 31 Kan.App.2d 1040, 1041, 77 P.3d 502 (2003) ; see State v. Huff, 50 Kan.App.2d 1094, 1099, 336 P.3d 897 (2014)petition for rev. filed November 24, 2014; In re Williams, 528 B.R. 814, 822 (Bankr.D.Kan.2015).
A review of the record reveals that the district court's purpose for extending the term was to oversee Vap's repayment of the $22,795 .20 in restitution. Vap contends that the district court's concern of restitution payments is not consistent with “public safety or inmate welfare findings.” Although, the primary function of criminal restitution is to make the victim whole, courts in this State have explained that criminal restitution also “serves the functions of deterrence and rehabilitation of the guilty.” Applegate, 266 Kan. 1072, Syl. ¶ 2.
Although perhaps the district court was not as clear as it could have been in stating its rationale for extending probation in this case, it properly set forth with particularity a reason that serves Vap's welfare—to ensure payment of restitution. See K.S.A.2011 Supp. 21–6608(c)(5). We pause to note that the State may also be correct that this issue may be moot in light of Sate v. Purdy, 277 Kan. 730, 89 P.3d 591 (2004), because Vap's probation was revoked and reinstated just 5 months after his sentencing. But there is not sufficient evidence in the record about the probation revocation—including whether it was appealed—to make this determination. Nevertheless, we conclude from the record before us that the district court possessed—and exercised—the statutory authority to impose a probation term longer than 12 months in order to facilitate the payment of restitution.
Affirmed.