March 4, 2014
RANDY L. MADEWELL, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE JOHNSON SUPERIOR COURT. The Honorable Lance D. Hamner, Judge. Cause No. 41D03-1201-FD-11.
ATTORNEY FOR APPELLANT: MICHAEL J. KYLE, Baldwin Adams & Kamish, Franklin, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ANDREW FALK, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge.
After hailstorms hit central Indiana in May 2011, Randy L. Madewell moved from Texas to Indiana and started Brown County Roofing out of a friend's home, claiming to be "locally owned and operated." Although Madewell secured contracts and money from six homeowners, he never replaced their roofs as promised or returned their money. A jury found him guilty of six counts of home-improvement fraud--three as Class D felonies and three as Class B misdemeanors. The trial court imposed consecutive sentences on the Class D felonies totaling six years.
Madewell contends that the evidence is insufficient to prove that when he entered into the contracts with the homeowners, he did not intend to replace their roofs or knew that he would not replace their roofs. He also contends that the trial court erred in imposing consecutive sentences on the Class D felonies because his crimes arose out of an episode of criminal conduct. We find the evidence sufficient to prove that Madewell came to Indiana to make a fast profit and that he did not intend to replace or knew that he would not replace the homeowners' roofs when he entered into the contracts. We also find that the crimes did not arise out of an episode of criminal conduct because they involved different homeowners on different dates. We therefore affirm the trial court.
Facts and Procedural History
Indiana had several hailstorms in May 2011. Madewell, a contractor by trade, lived in Texas, but he knew Johnny Mullens, who lived in Brown County, Indiana. Madewell contacted Mullens and proposed that they "do the roofing thing." Tr. p. 12. Mullens told Madewell that he would do whatever he could to help, but he was not going to quit his full-time job as a gas hauler for Circle K.
During the first week in June 2011, Madewell arrived at Mullens' house and moved in with his family. Madewell brought his truck as well as some office and roofing equipment. He did not bring a roofing crew with him. Madewell maintained his Texas driver's license, registration, and citizenship.
Within a month, Madewell created Brown County Roofing. Initially, the company was set up as a sole proprietorship. Madewell used Mullens' residential address and personal cell phone on his advertising materials. Id. at 15. He also stated in the materials that it was "locally owned and operated." Id.
Madewell hired Mullens as a salesperson to sign up as
many homeowners as he could to use Brown County Roofing to replace their
hail-damaged roofs. Mullens worked part-time for Madewell from June until the
end of August 2011. During this time, Mullens signed up approximately eight to
ten homeowners. Id. at 27-28. However, during this same time, the company
replaced only three roofs, even though it takes only about two days to replace a
roof. Id. at 18-19. Mullens occasionally asked Madewell why he had not lined up
subcontractors to start working on the roofs since he had already secured signed
contracts and money from the homeowners. Id. at 20-21. Madewell, however, always
gave Mullens different excuses. Id. When the business relationship between the
two men soured, Madewell moved out of Mullens' house in August 2011.
Also in August 2011, Madewell obtained business insurance, organized Brown
County Roofing as a Limited Liability Company (LLC), and obtained an Employer
The six homeowners at issue in this case signed contracts with Madewell but
never had their roofs replaced or their money refunded.
On June 30, 2011, Madewell and Mullens went to the home of Diana Boylls, who was
sixty-six years old at the time of trial in 2013. Madewell told Boylls about
possible hail damage and instructed her to contact her insurance company. Boylls
signed a contract with Brown County Roofing that day. State's Ex. 6. The
following week, an insurance adjuster, Madewell, and Mullens inspected Boylls'
roof. On July 11, Boylls wrote Madewell--not Brown County Roofing--a check for
$4000 from her personal funds because she had not received any insurance
proceeds. After receiving her insurance proceeds, on July 19, Boylls again wrote
Madewell--not Brown County Roofing--a second check for $1907. Madewell never
returned to Boylls' home. Boylls eventually had her roof replaced in the summer
of 2012 by another contractor.
Madewell inspected Mary Ruhana's roof on July 11, 2011. Ruhana's husband signed
a contract that same day. State's Ex. 9. The following day, Mullens and an
adjuster from State Farm inspected Ruhana's roof. Ruhana wrote Brown County
Roofing a check for $7608.01 on August 4. Madewell met with the State Farm
adjuster at Ruhana's house again in October. Supplies were never delivered to
Ruhana's house, and no work was completed. Ruhana eventually had her roof
replaced in November 2011 by another contractor.
Madewell met with sixty-one-year-old Mike Rogina in July 2011 about his roof
damage, and his wife signed a contract on July 11. State's Ex. 14. Rogina wrote
a check to Brown County Roofing for $7535.56 on July 29. Madewell never
performed any work for Rogina, and in October 2011, Rogina contacted the police.
Kevin Dunlap received a Brown County Roofing flyer in his mailbox and called
them. On July 22, 2011, Mullens went to Dunlap's home to assess his hail damage.
Dunlap's wife signed a contract that day. State's Ex. 3. When Dunlap's insurance
company approved the work, Madewell went to Dunlap's home around August 30.
Dunlap made a down payment of $5328. Madewell told Dunlap that he would start
work in about three weeks, but he never did. Dunlap contacted the police in
November 2011. Dunlap had his roof replaced by another contractor in early 2013.
Pauline Beuke's roof was also damaged by hail. Beuke was seventy-nine-years old
at the time of trial in 2013. Like Dunlap, Beuke called Brown County Roofing
after receiving a flyer. On July 22, 2011, Mullens inspected her roof. Beuke
signed a contract that day. State's Ex. 20. An insurance adjuster came over
later to confirm the damage. On September 20, Beuke met with Madewell and wrote
Brown County Roofing a check for $7000. Madewell never performed any work for
Beuke, and another contractor replaced Beuke's roof in December 2011.
Finally, Mullens went to the home of John Boyce on August 2, 2011, and inspected
his roof. Boyce signed a contract that day. State's Ex. 11. Madewell later met
Boyce's insurance adjuster at the house. Boyce wrote a check to Brown County
Roofing for $4487.59 on August 10. Madewell never performed any work for Boyce.
Boyce had his roof replaced by another contractor in October or November 2011.
When Boylls wrote her first check to Madewell on July 11, 2011, Madewell had not
yet opened a bank account for his company. So, he went to Boylls' bank and
cashed her $4000 check. Between July 11 and September 26, 2011, Madewell
collected and deposited nearly $110,000 through Brown County Roofing. From that
amount, Madewell purchased materials for a few projects, but none for any of the
six homeowners in this case. Madewell maintained multiple Brown County Roofing
bank accounts, including a checking account as a sole proprietorship (the "dba
account"), which was established on July 19, 2011; a checking account after
Madewell organized his company as an LLC (the "LLC account"), which was
established on August 13; and personal accounts with his bank that were separate
and distinct from his Brown County Roofing business accounts. The dba account
for August 2011 shows a $673.46 purchase at Bass Pro Shop for fishing poles.
Madewell also used the account that month to make purchases at Ralph Lauren
(twice), Elder Beerman, Columbia, Jockey, and several leather stores for
Madewell made similar purchases using the dba account in September 2011 at Ralph
Lauren, Columbia, Macy's, Moonshine Leather, Motorcycle Center (twice), and
Target. He also bought a boat, an iPod for his son, and a television for his
camper. Madewell also spent $3064 on a motorcycle for his son that he claimed
was to pay back a loan that was used to start up the company.
In October 2011, after Madewell had returned to Texas, the LLC account balance
was over $9000. But by the end of the month, the balance had decreased to $500.
Madewell made 104 purchases in Texas, and none of them were related to repairing
roofs in Indiana.
In January 2012, the State charged Madewell with six counts of home-improvement
fraud. Three of the counts were charged as Class D felonies because the
consumers were at least sixty years old (Count 1: Rogina, Count 3: Boylls, and
Count 5: Beuke), and the other three counts were charged as Class B misdemeanors
(Count 2: Boyce, Count 4: Ruhana, and Count 6: Dunlap). Appellant's App. p.
14-19. A three-day jury trial was held, and Madewell was found guilty of all six
counts. The trial court sentenced Madewell to 730 days (2 years) for each of the
Class D felonies (Counts 1, 3, and 5) and 180 days for each of the Class B
misdemeanors (Counts 2, 4, and 6). The court ordered Counts 1, 3, and 5 to run
consecutive to each other and Counts 2, 4, and 6 to run concurrent to each other
and to the other counts, for an aggregate sentence of 2190 days (6 years). The
court also ordered Madewell to pay restitution to each of the homeowners.
Madewell now appeals.
Discussion and Decision
Madewell contends that the evidence is insufficient to support his convictions
and that the trial court erred in ordering his sentences for the Class D
felonies (Counts 1, 3, and 5) to be served consecutively.
I. Sufficiency of the Evidence
Madewell contends that the evidence is insufficient to support his six
convictions for home-improvement fraud. When reviewing the sufficiency of the
evidence, we neither reweigh the evidence nor determine the credibility of
witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look solely to
the evidence most favorable to the verdict together with all reasonable
inferences to be drawn therefrom. Id. A conviction will be affirmed if the
probative evidence and reasonable inferences to be drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
In order to convict Madewell of Class B misdemeanor home-improvement fraud, the
State had to prove that Madewell entered into a home-improvement contract and
knowingly promised performance, that is, a new roof, that he did not intend to
perform or knew would not be performed. Ind. Code § 35-43-6-12(a)(3);
Appellant's App. p. 15, 17, 19. To establish that it was a Class D felony, the
State had to prove that the consumers were at least sixty years old and the
home-improvement contract price was $10,000 or less. Ind. Code §
35-43-6-13(b)(2); Appellant's App. p. 14, 16, and 18. The legislature's goal in
enacting Section 35-43-6-12 was to protect people, and particularly people at
least sixty years of age, from being taken advantage of by people performing or
offering to perform work on their homes. Golladay v. State, 875 N.E.2d 389, 393
(Ind. Ct. App. 2007), clarified by 880 N.E.2d 336 (Ind. Ct. App. 2008).
Madewell's only argument on appeal is that "the State presented no evidence of
Madewell's intent during the period of July through September when he actually
entered into the contracts." Appellant's Br. p. 7. Knowledge and intent are
mental states of the actor; therefore, the trier of fact must resort to
reasonable inferences based on an examination of the surrounding circumstances
to reasonably infer their existence. Slone v. State, 912 N.E.2d 875, 880 (Ind.
Ct. App. 2009), trans. denied.
We find that the evidence is sufficient to prove that when Madewell entered into
the home-improvement contracts with each of the six homeowners, Madewell either
did not intend to replace their roofs or knew that he would not replace their
roofs. Madewell moved from Texas to Indiana and created Brown County Roofing.
Madewell advertised as a "locally owned and operated" business but used Mullens'
address and phone number. Madewell, however, maintained his Texas driver's
license, registration, and citizenship. He asked that the first payment from
Boylls be made out to him--not Brown County Roofing--and cashed the check before
opening a business account. At trial, Madewell was unable to account for how
that first money was used.
Madewell asked Mullens to line up as many homeowners as he could, but without
any intention of finding subcontractors to perform the actual work. Despite
contracting with at least nine homeowners, only three roofs were installed
between June and September 2011. Curiously, one of the roofs Madewell completed,
and in a timely manner, was for an investigator for the Indiana Secretary of
State's office. Tr. p. 333, 348. Madewell received over $100,000 between June
and September 2011, but from that amount he paid for only a few roofs to be
installed. By the end of October, nearly all of the money was gone. Madewell
spent a substantial amount of money on clothes, leather accessories, fishing
equipment, a boat, a motorcycle and accessories, a television, an iPod, and
other personal items.
From this evidence, the jury could have reasonably inferred that Madewell came
to Indiana to make a fast profit after the May 2011 hailstorms and took
advantage of Mullens and his hospitality by setting up shop in his home and
using his address in order to proclaim that his business was "locally owned and
operated." Although Madewell collected $100,000 between June and September 2011,
he completed only three roofs and spent no money toward the roofs of the six
homeowner victims here. Instead, he spent money on personal items. The evidence
is sufficient to prove that when Madewell entered into the home-improvement
contracts with each of the six homeowners, Madewell either did not intend to
replace their roofs or knew that he would not replace their roofs. Madewell's
arguments that in August 2011 he obtained business insurance, organized Brown
County Roofing as an LLC, and obtained an Employer Identification
Number--notably all of which occurred approximately two months after he started
his company--are merely requests for us to reweigh the evidence, which we will
not do. We therefore affirm Madewell's six convictions for home-improvement
II. Consecutive Sentence
Madewell contends that the trial court erred in ordering consecutive sentences for his Class D felonies (Counts 1, 3, and 5) totaling six years. Specifically, he argues that the trial court's imposition of consecutive sentences violates Indiana Code section 35-50-1-2(c), which provides in relevant part:
[E]xcept for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
Madewell asserts that his crimes were part of a single episode of criminal conduct, and, as a result, the trial court erred in imposing consecutive sentences exceeding four years, which is the advisory sentence for a Class C felony.
An " episode of criminal conduct" means " offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code § 35-50-1-2(b). In determining whether offenses are sufficiently related, emphasis has been placed on the timing of the offenses and whether they were committed simultaneously or contemporaneously. Gootee v. State, 942 N.E.2d 111, 114 (Ind.Ct.App. 2011), trans. denied . Additionally, we may consider " whether the conduct is so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to details of the other charge," though this consideration is not dispositive. Id.; see also Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006).
Madewell entered into home-improvement contracts with six different homeowners--three of them at least sixty years old--for different amounts of money on multiple dates. Although his crimes were similar--entering into contracts to replace the homeowners' roofs, taking their money before performing any work, and then not replacing their roofs or returning their money--each situation was unique. Madewell maintained just enough phone contact or occasionally came to their homes to make it seem like his company would eventually replace their roofs. Because Madewell committed his crimes at different places, with different people, and on different days, his crimes are not an episode of criminal conduct. See Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (finding that the forgeries--which consisted of defendant stealing checks from victim and then depositing them at different banks in Marion County over the course of one afternoon--were not an episode of criminal conduct because they occurred " at a separate time, separate place and for a separate amount money from the other." ). Accordingly, the trial court did not err in imposing consecutive sentences pursuant to Section 35-50-1-2(c).
RILEY, J., and MAY, J., concur.