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Reust v. State

Court of Appeals of Indiana

December 17, 2019

Matthew E. Reust, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Indianapolis, Indiana


         Statement of the Case

         [¶1] Matthew E. Reust appeals after a jury trial from his convictions of one count of home improvement fraud, [1] as a Level 5 felony, and one count of theft, [2] as a Level 6 felony. We affirm in part, reverse in part, and remand with instructions.


         [¶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 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 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 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 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.

         [¶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 ...

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