Matthew E. Reust, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Wabash Circuit Court The Honorable Robert R.
McCallen, III, Judge Trial Court Cause No. 85C01-1509-FC-852
ATTORNEY FOR APPELLANT Daniel J. Vanderpool Vanderpool Law
Firm, P.C. Warsaw, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caryn N. Szyper Deputy Attorney General
BARTEAU, SENIOR JUDGE.
of the Case
Matthew E. Reust appeals after a jury trial from his
convictions of one count of home improvement fraud,
a Level 5 felony, and one count of theft,  as a Level 6
felony. We affirm in part, reverse in part, and remand with
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
II. Is the evidence sufficient to sustain Reust's
conviction for Level 6 felony theft?
and Procedural History
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 School. In support of their grandson's
wishes, they purchased thirty acres of land near Sycamore
Golf Course in Wabash County.
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.
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.
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 jobs Reust had
completed. Alex, who was pleased with the work finished at
other projects, decided to hire Reust to complete the patio.
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.
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.
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.
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 line items. The Ramseys agreed
to Reust's price and Alex instructed Reust to begin the
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.
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.
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.
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 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.
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.
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.
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.
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