                                                                             FILED
                                                                        Dec 17 2019, 11:37 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                      Curtis T. Hill, Jr.
Vanderpool Law Firm, P.C.                                 Attorney General of Indiana
Warsaw, Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Matthew E. Reust,                                         December 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2887
        v.                                                Appeal from the Wabash Circuit
                                                          Court
State of Indiana,                                         The Honorable Robert R.
Appellee-Plaintiff.                                       McCallen, III, Judge
                                                          Trial Court Cause No.
                                                          85C01-1509-FC-852



Barteau, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019                            Page 1 of 21
                                          Statement of the Case
[1]   Matthew E. Reust appeals after a jury trial from his convictions of one count of
                                            1                                       2
      home improvement fraud, as a Level 5 felony, and one count of theft, as a

      Level 6 felony. We affirm in part, reverse in part, and remand with

      instructions.


                                                          Issues
[2]   Reust presents the following issues for our review which we consolidate and

      restate as the following questions:


                 I. Does the home improvement fraud statute apply to Reust’s
                 conduct, and, if so, is the evidence sufficient to support his
                 conviction of Level 5 felony home improvement fraud?


                 II. Is the evidence sufficient to sustain Reust’s conviction for
                 Level 6 felony theft?


                                   Facts and Procedural History
[3]   In 2012, sixty-one-year-old Alex Ramsey (“Alex”) had recently retired from his

      job. He and his wife, Jacqueline (“Jackie”), were rearing their grandson in

      Fishers. The Ramseys’ grandson hoped to attend North Manchester High




      1
          Ind. Code §§ 35-43-6-12(a) (2006); 35-43-6-13(c)(1) (2014).
      2
          Ind. Code § 35-43-4-2(a)(1)(A) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019             Page 2 of 21
      School. In support of their grandson’s wishes, they purchased thirty acres of

      land near Sycamore Golf Course in Wabash County.


[4]   In October 2012, the Ramseys entered into a contract with Tim Howell

      Construction to build a custom ranch-style home on the land for $472,579.00.

      Tim Howell (“Howell”) was a general contractor from Columbia City. Howell

      suggested architects and designers to help Alex finalize plans for the new

      construction. When complete, the Ramseys’ home was to be a 4,300 square-

      foot ranch-style home with a brick exterior and a full, finished basement.

      Under the terms of the contract, which was drafted by Alex, the various phases

      of construction included site preparation by clearing several acres of woods,

      installation of a water well, and house construction. A line item regarding the

      house construction included landscaping, with a contracted price of $28,444.00.


[5]   Howell started construction on the land in the spring of 2013, after the weather

      had improved and the Ramseys had secured financing for the project. As of

      August 2013, the site had been cleared, the exterior walls of the home had been

      built, and the roof had been installed.


[6]   Sometime in the fall of 2013, instead of adding fill dirt around the foundation in

      the back of the home, the Ramseys decided to add a patio. A patio was not part

      of the original construction contract with Howell. Someone at church

      mentioned to Alex that Reust was trying to start up a business and that it would

      be nice to help him find projects. Alex contacted Reust and they toured other




      Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019   Page 3 of 21
       jobs Reust had completed. Alex, who was pleased with the work finished at

       other projects, decided to hire Reust to complete the patio.


[7]    Alex prepared the contract for the two to sign, and it was signed on November

       5, 2013. Alex and Jackie agreed to pay Reust $12,311.32 for the project. Alex

       paid Reust $9,300.00 up front for the purchase of materials. During the course

       of the work, the Ramseys decided to expand the project and the overall cost was

       increased to reflect the changes.


[8]    Reust did some of the work in the fall of 2013 and finished the project in May

       2014. Alex was “generally satisfied” with Reust’s work at the time with the

       exception of the work done on the retaining wall near the patio. Tr. Vol. II, p.

       63. Alex paid Reust $16,964.50 for the patio project but withheld $461.82

       because the retaining wall had not been completed to his satisfaction.


[9]    At about the same time as Reust was finishing the patio project, the Ramseys

       were looking for a landscaper. Reust approached Howell, asking him to

       recommend him to the Ramseys for that project. Howell did recommend him

       for the job.


[10]   Reust prepared a master plan for the landscaping at the house. After the

       Ramseys agreed to the plan, Reust provided a quote for the landscaping project

       on June 3, 2014. The total cost of the project was $22,749.00. The quote

       included a breakdown of the cost for lava rock, grass seed, fertilizer, straw,

       boulders, fieldstone, lighting, plants, fencing, and labor, along with a few other



       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019     Page 4 of 21
       line items. The Ramseys agreed to Reust’s price and Alex instructed Reust to

       begin the work.


[11]   On June 7, 2014, Howell wrote a check to Reust for $15,000.00 as an advance

       payment toward the landscaping job. That check was written from Howell’s

       business account. Exhibit Vol. I, pp. 47-48.


[12]   Reust performed only a small amount of the landscaping work, including

       installing a fence around the air conditioning unit, installing blocks along the

       stairs, and, according to Howell, moving some dirt around for about twenty

       minutes. By August, Reust had not planted grass seed in the yard or had any

       plants delivered to the Ramseys’ home. Alex then started contacting Reust on a

       regular basis in an effort to urge him to follow through with the landscaping

       project.


[13]   On September 10, 2014, Reust asked Alex for $5,000.00 toward the landscaping

       work. Alex, who was unaware that Howell had already advanced Reust

       $15,000.00 in June, wrote the check for $5,000.00. That check was written

       from the Ramseys’ personal account. Id. at 45. Alex asked Reust if he would

       return to complete the work. Although Reust responded that he would return,

       he did not return to complete the work.


[14]   Throughout September and October, Alex and Howell persistently called and

       texted Reust about completing the landscaping work to no avail. Eventually, at

       the end of October, Reust told Alex that he should hire someone else to do the

       job. Alex replied that he was disappointed and asked to meet with Reust to

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019     Page 5 of 21
       discuss how to “make this project happen.” Tr. Vol. II, p. 88. Reust would

       agree to appointments to meet with Alex, but frequently cancelled the meetings

       with excuses for not being able to meet. The construction of the house was

       completed in November 2014, but the yard was a “mud pit” heading into the

       winter season with no grass or plants. Id. at 162. The Ramseys moved into the

       home in late 2014 or early 2015. Reust returned to the property just once in

       December 2014 to drop off some landscaping lights outside the garage.


[15]   Reust did not refund the $20,000.00 he received to complete the landscaping

       work and did not return to the site to finish the project. The Ramseys

       eventually completed the landscaping work themselves with the help of Howell

       and another landscaper they hired.


[16]   Of the materials promised under the agreement, Reust was to provide and

       complete as follows: (1) flagstone valued at $270.00; (2) a pallet of large native

       boulders, valued at $161.00; (3) a pallet of medium native boulders, valued at

       $322.00; (4) a pallet of Tennessee fieldstone, valued at $170.00; (5) landscaping

       lighting, valued at $500.00; (6) rope lighting, valued at $250.00; and, (6) fence,

       valued at $750.00. The landscaping agreement provided for 200 hours of labor

       at a rate of $32.00 per hour. Alex estimated that two workers were on the

       property for three days for approximately eight hours a day. In sum, Alex

       estimated that the labor and materials actually provided totaled $4,151.00. The

       labor and materials specified in the agreement, but not provided, totaled

       $18,388.07.



       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019     Page 6 of 21
[17]   Public Law 158-2013, which became effective on July 1, 2014, made changes to

       Indiana’s criminal code. The amendment reorganized felony offenses by

       numbers rather than letters. Because Reust’s conduct straddled the effective

       date of the statutory changes, the State charged him under both the former and

       amended statutes. Count I alleged that Reust committed home improvement

       fraud as a Class C felony. Count II alleged that Reust committed theft as a

       Class D felony. Count III alleged that Reust committed home improvement

       fraud as a Level 5 felony. Count IV alleged that Reust committed theft as a

       Level 6 felony. Counts I and II covered the period of time from May 1, 2014

       through June 30, 2014. Counts III and IV covered the period of time from July

       1, 2014 through April 7, 2015.


[18]   During Reust’s jury trial, he moved for a judgment on the evidence or, in the

       alternative, a dismissal of the home improvement fraud charges alleged in

       Counts I and III. In support of Reust’s argument, he claimed that the home

       improvement fraud statute did not apply to his landscaping work because the

       project, as a whole, involved the original construction of a dwelling, which is

       exempted from the offense. The State responded that the landscaping work was

       separate from the construction of the home because it involved the modification

       or alteration of residential property. The trial court denied Reust’s motions but

       permitted him to raise his arguments to the jury.


[19]   During closing argument, the State explained that it had charged Reust with

       two counts of the offenses because of the effective date of the July 1, 2014

       criminal code revision. The State argued that there should not be four guilty

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 7 of 21
       verdicts, rather the jury should determine on what date the offenses were

       committed. After the State conceded that the theft charge as alleged in Count II

       should not result in a guilty verdict, the trial court dismissed Count II.


[20]   The jury found Reust guilty of home improvement fraud as a Level 5 felony

       and theft as a Level 6 felony. Reust now appeals.


                                     Discussion and Decision
                            I. Home Improvement Fraud Statute
[21]   The crux of this issue is whether the home improvement fraud statute applies to

       Reust’s acts. Appellate courts review matters of statutory interpretation de

       novo because they involve pure questions of law. Nicoson v. State, 938 N.E.2d

       660, 663 (Ind. 2010). “Of course, ‘[t]he primary purpose of statutory

       interpretation is to ascertain and give effect to the legislature’s intent.’” Id.

       (quoting State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008)). “The statute

       itself is the best evidence of this intent.” Id. “‘The Court presumes 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. (quoting State v.

       Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008)).


[22]   “When the statutory language is clear and unambiguous, we give effect to its

       plain and ordinary meaning.” Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015).

       “Where the language is clear and unambiguous, there is ‘no room for judicial

       construction.’” Jackson v. State, 50 N.E.3d 767, 772 (Ind. 2016) (quoting St.

       Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 704 (Ind. 2002)).

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019        Page 8 of 21
       “In other words, when the meaning of the words is plain on paper, we need not

       resort to other rules of statutory construction to divine intent.” Id.


[23]   Additionally, “[p]enal statutes should be construed strictly against the State and

       ambiguities should be resolved in favor of the accused.” Merritt v. State, 829

       N.E.2d 472, 475 (Ind. 2005). However, statutes should not be read so narrowly

       that cases they would fairly cover would be excluded. Id. With that framework

       set out, we turn to the relevant statutes.


[24]   Indiana Code section 35-43-6-1(1987) provides that the chapter “applies only to

       residential property, which means real property used in whole or in part as a

       dwelling by a consumer and includes all fixtures to, structures on, and

       improvements to the real property.” The statutory definition of residential

       property, for purposes of Indiana Code chapter 35-43-6, has the meaning set

       forth in Indiana Code section 35-43-6-1. Ind. Code § 35-31.5-2-276 (2012). A

       dwelling is defined by Indiana Code section 35-31.5-2-107 (2012), as “a

       building, structure, or other enclosed space, permanent or temporary, movable

       or fixed, that is a person’s home or place of lodging.”


[25]   A person is defined, as used in Indiana Code chapter 35-43-6 as “an individual,

       corporation, business trust, estate, trust, partnership, association, cooperative,

       or any other legal entity.” Ind. Code § 35-43-6-7 (1987). A consumer is defined

       for purposes of this chapter as “an individual who owns, leases, or rents the

       residential property that is the subject of a home improvement contract.” Ind.

       Code § 35-43-6-2 (1987).


       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019      Page 9 of 21
[26]   A home improvement is defined as “any alteration, repair, or other

       modification of residential property. However, this chapter does not apply to

       the original construction of a dwelling.” Ind. Code § 35-43-6-3 (1987).


[27]   For purposes of this chapter, a home improvement contract is defined as “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 ($150).” Ind. Code § 35-43-6-4 (1987).

       Additionally, Indiana Code section 35-43-6-6 (1987) provides that a home

       improvement supplier is “a person who engages in or solicits home

       improvement contracts whether or not the person deals directly with the

       consumer.” The home improvement contract price, as used in this chapter, is

       defined as “the amount actually charged for the services, materials, and work to

       be performed under the home improvement contract . . . .” Ind. Code § 35-43-

       6-5 (1987).


[28]   In pertinent part, a home improvement supplier commits the offense of home

       improvement fraud when a home improvement supplier enters into a home

       improvement contract and knowingly promises performance that the home

       improvement supplier does not intend to perform or knows will not be

       performed. Ind. Code § 35-43-6-12(a)(3). The offense is enhanced to a Level 5

       felony, in pertinent part, if: (1) it is a violation of section (a)(3) and; (2) the

       consumer is at least sixty (60) years of age and the home improvement contract

       price is at least ten thousand dollars ($10,000).” Ind. Code § 35-46-6-

       13(c)(1)(A).

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019         Page 10 of 21
[29]   The State contends that the facts of this case fall squarely within the plain

       language of the home improvement fraud statute. The State argues that Alex’s

       property was residential property as defined above because Alex, his wife, and

       his grandson intended to use their home as a dwelling during the first part of the

       charged timeframe and they did use their home as a dwelling during the

       remainder of the charged timeframe. The State further argues that the plain

       language of the statute does not require the consumer to be living inside a

       dwelling at the time the work is being performed for real property to qualify as

       residential property. The State also asserts that Reust’s landscaping work also

       qualified as a home improvement because it involves the alteration or

       modification of residential property. Last, the State claims that the statute’s

       exemption of original construction does not apply to landscaping, contending

       that landscaping does not result in the construction of a dwelling.


[30]   Reust, on the other hand, argues that the plain language of the statute is

       applicable to real property used in whole or in part as a dwelling by a consumer.

       He contends that if the legislature had intended for the statute to include “real

       property used or to be used in whole or in part as a dwelling”, it would have done

       so. Appellant’s Br. p. 21.


[31]   We agree with Reust that the plain language of the statutes defining home

       improvement and dwelling require the consumer to live in the dwelling at the

       time of the home improvement. This reading of the statutes does not conflict

       with the statutory exemption for new construction.



       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 11 of 21
[32]   Furthermore, it is undisputed that this was the construction of a new home. A

       line item in the home construction agreement included landscaping. Howell

       had contacted a landscaper to be a subcontractor, but that landscaper was not

       chosen. Instead, Reust served as the landscaping subcontractor. However,

       Reust did not complete the work after accepting advance money, which he

       never offered to return. Ultimately, Alex, his wife, his grandson, Howell, and

       another landscaper helped to complete the landscaping.


[33]   In Tucker v. State, 646 N.E.2d 972, 975 (Ind. Ct. App. 1995), we held that

       spraying for termites on two existing homes was a home improvement under

       the statute. In that case, the home improvement supplier targeted an eighty-

       two-year-old woman. He stated he was there to inspect for termites, but then

       convinced the woman to allow him to spray her home for termites he claimed

       he had found. He charged her $2,400.00 for the forty-five-minute job. Another

       man was across the street spraying the rental property the woman also owned.

       He charged the woman $96.00 for the services provided at the rental property.

       However, when the check was endorsed, the amount on the check had been

       altered to $9,600.00.


[34]   On appeal, in an attempt to reduce the enhanced sentence, Tucker argued that

       the woman’s rental property was not residential property for purposes of the

       home improvement fraud statute. We held that, though the evidence was scant,

       it was sufficient to establish that the woman’s rental house was residential

       property. Id. at 976.



       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019   Page 12 of 21
[35]   Therefore, although the woman did not live in the rental property, the rental

       house was a place in which tenants could reside and tenants may have been

       residing there at the time. By contrast, in the current case there is no dispute

       that the Ramseys’ home was unlivable when Reust was supposed to have done

       the landscaping work. This is further support of our conclusion that an existing

       home must be occupied by the owner or existing rental property must be

       available to be occupied by a tenant for purposes of establishing that it is

       residential property upon which home improvements can be made.


[36]   Our research has revealed no cases in Indiana deciding whether landscaping to

       be installed around the original construction of a home falls under the home
                                              3
       improvement fraud statute. Nonetheless, under the wording of our statutes,




       3
         Other states have handled the issue of landscaping as respects home improvement. It is sometimes
       appropriate to review caselaw from other states for guidance in interpreting similar provisions. See Jordan ex
       rel. Jordan v. Deery, 778 N.E.2d 1264 (Ind. 2002) (looking for guidance from other states for interpretation of
       similar constitutional provisions).
       In Hakimi v. Cantwell Landscaping & Design, Inc., 855 N.Y.S. 273 (N.Y. 2008), a property owner and a home
       improvement contractor hired to install landscaping at the construction site for the owner’s new home, filed
       actions against each other, seeking summary judgment for their various positions on a claim for breach and a
       claim to foreclose on a mechanic’s lien filed against the property. Resolution of the issue on appeal was
       whether the landscaping contractor was engaged in the construction of a new home. 855 N.Y.S. at 275. This
       determination would resolve whether the landscaping contractor was subject to licensing requirements in
       Suffolk County.
       The applicable Suffolk County Code sections did not include definitions of “construction” or “home”.
       However, Suffolk County Administrative Code section 345-16 defines home improvement contractor as “a
       person who engages in home improvement contracting upon residential property.” 855 N.Y.S. at 275. It
       also defines “home improvement contracting” as “any repair, remodeling, alteration, conversion,
       modernization, improvement or addition to residential property, and includes but is not limited to . . .
       waterproofing, as well as other improvement to structures or upon land which are part of residential property,
       including landscaping and arboriculture . . . but shall not include the construction of a new home.” Id.
       The pertinent provision in the Southampton Town Code, section 143-1(A), defines “home improvement” as
       “the repairing, remodeling, altering, converting or modernizing of, or adding to, residential property and
       shall include, but not be limited to . . . landscaping . . . and other improvement of residential property and all

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019                               Page 13 of 21
       landscaping qualifies as a home improvement because it involves the alteration,

       repair, or other modification of residential property, but does not apply to the

       original construction of a dwelling. See Ind. Code § 35-43-6-3.


[37]   We conclude that Reust’s conduct did not fall under the Home Improvement

       Fraud Statute. The landscaping project Reust was to perform was ancillary to

       the construction of the Ramseys’ new home. In fact, a line item for landscaping

       was included in the contract between the Ramseys and Howell. Because this is

       landscaping at a new home construction site, and new home construction is

       excluded under the terms of the statute as it is not residential property, Reust’s




       structures or land adjacent to it.” Id. The Southampton Town Code expressly excluded construction of a
       new home from the definition of home improvement. Id.
       The Court concluded that inclusion of landscaping work performed at the property where a new home is
       being constructed “would require this Court to impermissibly rewrite a clearly worded statute to obtain a
       desired result.” Id. at 276 (internal quotation omitted). The Court reasoned that because the landscaping
       contractor was not building a new structure on the property, but was installing landscape materials and
       performing landscaping services, it was not engaged in the construction of a new home. Id. Therefore, the
       Court not only found that landscaping was not excluded from the definition of a home improvement because
       the work performed did not result in the construction of a new home but found that landscaping was a home
       improvement under the plain language of the statute, which made an explicit reference to landscaping
       activities as home improvement.
       Unlike the applicable code sections in New York, Indiana does not explicitly include landscaping within the
       definition of home improvement. Other states such as Connecticut and New Jersey also include landscaping
       within the definition of home improvement. See Drain Doctor, Inc. v. Lyman, 973 A.2d 672 (Conn. 2009)
       (citing Connecticut’s Home Improvement Act statute, which includes landscaping, in plumbing case where
       ancillary lawn repair and driveway repair was performed); Czar, Inc. v. Heath, 966 A.2d 1008 (N.J. 2009)
       (citing New Jersey’s Home Improvement Practices Act, which includes landscaping, in case brought under
       New Jersey’s Consumer Fraud Act involving installation of cabinets, doors, window casings and decorative
       molding); Messeka Sheet Metal Co., Inc. v. Hodder, 845 A 2d 646 (N.J. 2004) (citing New Jersey’s Home
       Improvement Practices Act, which includes landscaping, in case brought under New Jersey’s Consumer
       Fraud Act involving installation of air conditioning units).
       The New York legislative bodies and those of Connecticut and New Jersey saw fit to include landscaping in
       the definition of home improvement, but the Indiana Legislature has chosen not to do so. Even so, under the
       language of Indiana’s Home Improvement Fraud statute and caselaw interpreting the statute, landscaping is
       a home improvement, but only if it is performed on residential property.

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019                         Page 14 of 21
       landscaping is not an alteration, repair, or modification of residential property.

       Therefore, his conduct does not fall within the provisions of the Home

       Improvement Fraud statutes. Consequently, we reverse Reust’s conviction for

       Home Improvement Fraud and remand with instructions that the trial court

       vacate the conviction.


             II. Sufficiency of the Evidence of Level 6 Felony Theft
[38]   Reust also challenges the sufficiency of the evidence to support his conviction

       for Level 6 felony theft. Our standard of review of these claims is well

       established. “For a sufficiency of the evidence claim, we look only at the

       probative evidence and reasonable inferences supporting the verdict.” Love v.

       State, 73 N.E.3d 693, 696 (Ind. 2017). “We do not assess the credibility of

       witnesses or reweigh the evidence.” Id. “We will affirm the conviction unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Id.


[39]   In order to establish that Reust had committed Level 6 felony theft, the State

       was required to prove beyond a reasonable doubt as follows:


               A person who knowingly or intentionally exerts unauthorized
               control over property of another person, with intent to deprive
               the other person of any part of its value or use, commits theft, a
               Class A misdemeanor. However, the offense is:

               (1) a Level 6 felony if:

               (A) the value of the property is at least seven hundred fifty dollars
               ($750) and less than fifty thousand dollars ($50,000)[.]


       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019        Page 15 of 21
[40]   At trial, Alex testified that he had drafted the agreement with Howell, and the

       agreement was admitted as evidence at trial. Exhibit Vol. I, pp. 49-52. The

       terms of the agreement which are pertinent to this issue and the arguments

       presented are as follows:


               SECTION III–PAYMENT AND INVOICING

               3.1 Payment. [Howell] agrees to complete the work herein based
               upon a six (6) payment draw schedule. [Howell] agrees that
               [Alex’s] financial institution will inspect any work that is
               invoiced by [Howell] to insure satisfactory completion of said
               work prior to payment being rendered to [Howell].

               3.2 Invoicing. [Howell] shall provide sufficient detail on all
               invoices to fully describe work for which billing is being
               rendered.

               SECTION [IV]–COMPLIANCE & PERSONNEL

               4.1 Qualified Personnel. [Howell] warrants that all services
               rendered under this Agreement will be performed by qualified
               and experienced personnel and that all work will be in
               compliance with all federal, state and local laws, regulations and
               ordinances pertaining to services provided herein.

               ****

               SECTION VI–GENERAL CONTRACTOR

               6.1 [Howell] agrees to perform [his] duties herein as [Alex’s]
               primary contractor, which includes the complete oversight of all
               work required by [Howell] and any subcontractor “agent”
               required to properly complete the work herein.

               SECTION VII–WORK SCOPE AND COST




       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 16 of 21
               7.1 [Alex] will pay [Howell] for the satisfactory completion of the
               work herein based on a six (6) payment schedule, subject to the
               satisfactory inspection of [Alex’s] financial institution and any
               governing agency requiring inspection be performed.

               7.2 [Howell’s] cost to complete site preparation, installation of a
               water well, mound septic system, driveway, and construction of
               [Alex’s] house for four hundred seventy[-]two thousand five
               hundred seventy[-]nine dollars ($472,579.00). See attached cost
               breakdown for clarification of the various phases of construction.

               Id. at 50-51.

[41]   The cost breakdown included separate descriptions and pricing for: (1) site

       preparation; (2) water well; and (3) house construction. The house construction

       category included a line item for landscaping with a cost of $28,444.00. Id. at

       52.


[42]   Reust’s written proposal for the landscaping work was generally described as

       “New Landscaping all around house.” Id. at 43. The total cost of his

       landscaping work was $22,749.00. Id.


[43]   During cross-examination, Alex was asked how much he had paid Howell.

       Alex testified that “I don’t know that answer. Because we’d made some

       modifications to stuff as we went through and–and I paid him every so often

       based on what he needed.” Tr. Vol. II, p. 100. He was then asked if he had

       any records of what he had paid to Howell. Alex responded that he did. He

       was asked how many separate checks he had written to Howell. Alex

       answered, “Well, I–I didn’t really write him checks. Um, the bank–he would

       do draws at the bank.” Id. He then testified that he had an escrow account or a

       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 17 of 21
       construction loan with a bank. Id. at 101. Alex stated that there was a

       procedure through the bank for submitting invoices and the bank would pay the

       invoice out of the proceeds of the construction loan. Id. He clarified that if

       there were any additions not included in the home construction contract, he

       and his wife would pay Howell with their own funds, and not the proceeds of

       the construction loan. Id.


[44]   With respect to financing, Howell testified that in most instances when a

       construction loan is set up with a bank, the bank will ask for an itemization of

       the various components of the construction. Id. at 126. The bank will cover or

       issue proceeds for those various items up to the cost listed in the itemization.

       Id. at 127. He explained that because the patio was not on the itemized list

       submitted to the bank, Alex and his wife had to pay for that project separately.

       Id.


[45]   Howell testified that he wrote a check to Reust for $15,000.00 as prepayment on

       the landscaping work. He also testified that Alex had issued a personal check

       for $5,000.00. Howell stated a generous estimate of the amount of landscaping

       work completed by Reust would be $1,500.00. He later modified that estimate

       to $2,000.00.


[46]   During cross-examination, Howell testified further about financing and

       construction loans. He stated that the landscaping was in the list of itemized

       projects. Even though it was a listed item, he wrote the check from his business

       account. His check was an advance, because he knew that the bank, at the end


       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 18 of 21
       of the job, would reimburse that. Id. at 146. He also stated that the bank paid

       an amount up to the itemized amount, $28,444.00, for the landscaping work

       because they could not have closed on the loan otherwise. Ultimately, Howell

       was reimbursed for the $15,000.00 advance to Reust from the construction loan

       proceeds.


[47]   Reust argues that Howell was not a victim of theft because he was reimbursed

       from the construction loan. He further argues that if Alex and his wife were the

       victims of a theft, the evidence shows that they advanced $5,000.00 to Reust,

       and received approximately $4,500.00–Alex’s estimate–of work from him.

       Reust contends that Alex’s loss would be $500.00, less than the statutory

       minimum for Level 6 felony theft.


[48]   The State contends that Reust did not refund any of the $20,000.00 advanced to

       Reust. Howell received reimbursement for his $15,000.00 from the proceeds of

       the construction loan. The evidence does show that Alex paid $5,000.00 and

       received $4,500.00 in landscaping work from Reust, thus, leaving him with a

       loss of $500.00. However, Alex and his wife had to pay off the construction

       loan, including the distribution of funds for landscaping. The amount paid by

       the bank for the landscaping work is unclear from the record, because the

       construction loan authorized an amount up to $28,444.00. Yet, the record

       shows that, at a minimum, Reust received $20,000.00, performing only

       $4,500.00 of landscaping work. Therefore, Alex’s losses were at least

       $15,500.00.



       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019   Page 19 of 21
[49]   We agree with the State’s argument and conclude that the evidence is sufficient

       to support Reust’s conviction for Level 6 felony theft. That said, we remand

       this matter to the trial court to resentence Reust for his theft conviction and to

       hold a restitution hearing for an accurate determination of Alex’s losses.


[50]   In Duren v. State, 720 N.E.2d 1198 (Ind. Ct. App. 1999), the defendant

       contended on appeal that he was inappropriately charged with theft, when he

       should have been charged with home improvement fraud. The defendant

       received a check for $3,862.16 from the homeowners for the installation of

       custom windows and doors at their home. The company the defendant used

       ordered the materials COD or cash on delivery. Although the windows were

       received by the company, the defendant never paid for or picked up the

       materials. There does not appear to have been a written contract between the

       homeowners and the defendant.


[51]   As respects the defendant’s claim that he was improperly charged, we observed

       that the elements of theft and the elements of the home improvement fraud

       statute “contain elements that are quite different and do not address the same

       subject matter.” Id. at 1203. Therefore, it is possible for a defendant to be

       properly charged with one of those two offenses instead of the other. It follows

       that it is appropriate for us to find the evidence insufficient on the home

       improvement fraud conviction, while finding the evidence sufficient to support

       the theft conviction.




       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019     Page 20 of 21
                                                 Conclusion
[52]   In light of the foregoing, we conclude that the facts as proven do not show that

       Reust’s conduct falls under the Home Improvement Fraud statute. However,

       the evidence is sufficient to support Reust’s conviction for one count of theft.

       The matter is remanded to the trial court with instructions to vacate Reust’s

       home improvement fraud conviction, resentence Reust for his theft conviction

       and hold a hearing to determine the amount of restitution which is owed.


[53]   Affirmed in part, reversed in part and remanded with instructions.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2887 | December 17, 2019    Page 21 of 21
