Duren v. State
| Decision Date | 20 December 1999 |
| Docket Number | No. 87A01-9905-CR-170.,87A01-9905-CR-170. |
| Citation | 720 N.E.2d 1198 |
| Parties | Justin R. DUREN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Frank R. Hahn, Newburgh, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Appellant-Defendant, Justin R. Duren (Duren), appeals his conviction for theft, a Class D felony. Ind.Code § 35-43-4-1.
We affirm.
Duren raises four issues for our review, which we restate as follows:
In December, 1996, Duren met with Terry and Marsha Haire to discuss the installation of custom replacement windows and doors at the Haire's home in Boonville, Indiana. Duren was at the time a self-employed contractor. The Haires are Duren's wife's aunt and uncle. Duren had informed the Haires that he would order the windows and doors from Benthall Bros., an Evansville company, and a representative from Benthall Bros. attended this meeting. Duren informed the Haires that they would have to pay in advance for the windows and doors because Benthall Bros. required advance payment to place the order. The Haires presented Duren with a check for $3,862.16 which was to cover the cost of the materials and allow Duren some profit. Benthall Bros. ordered the materials COD and Duren informed the Haires that the materials would be available in five to six weeks.
The windows were received by Benthall Bros. on January 21, 1997, but Duren never picked them up or paid for them. In the interim, Duren had spent the money the Haires gave him for the windows and doors. Duren never refunded the Haire's money or installed the replacement windows and doors in their home. The Haires attempted to contact Duren several times, but he failed to reply to any of their telephone calls or other contacts.
On May 1, 1998, Duren was arrested and charged with theft, a Class D felony. He was tried before a jury on April 5 and 6, 1999, and was found guilty. The trial court sentenced Duren to one and one-half years incarceration.
This appeal followed.
Duren argues that the evidence was insufficient for the jury to convict him of theft. Specifically, Duren argues that there was no evidence that his control over the funds at issue was "unauthorized" or that the Haires retained an interest in the funds once they were transferred to Duren. Duren additionally argues that there was no evidence of his intent to deprive the Haires of their property.
Our standard of review with regard to sufficiency claims is well settled. We neither weigh the evidence nor judge the credibility of the witnesses. McClendon v. State, 671 N.E.2d 486, 488 (Ind.Ct. App.1996). We consider only the evidence favorable to the verdict and all reasonable inferences which can be drawn therefrom. "If there is substantial evidence of probative value from which a trier of fact could find guilt beyond a reasonable doubt, we will affirm the conviction." Newman v. State, 677 N.E.2d 590, 593 (Ind.Ct.App. 1997) (citing Gant v. State, 668 N.E.2d 254, 255 (Ind.1996)). We are also mindful that the jury is the trier of fact and is entitled to determine which version of the incident to credit. Barton v. State, 490 N.E.2d 317, 318 (Ind.1986). Furthermore, the jury, not this Court, determines the credibility of the witnesses, and a theft conviction may be sustained by circumstantial evidence. Ward v. State, 439 N.E.2d 156, 159 (Ind.1982).
Ind.Code § 35-43-4-2(a) sets forth the elements of theft, in pertinent part, 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 D felony."
As stated, Duren argues that there was no evidence that his control over the funds at issue was "unauthorized" or that the Haires retained an interest in the funds once transferred to Duren. Ind. Code § 35-43-4-1(b) defines "unauthorized" in pertinent part as follows:
We need look no further than Ind.Code § 35-43-4-1(b)(2) to conclude that the jury was presented with sufficient evidence to determine that Duren's possession of the Haire's funds was "unauthorized." The evidence shows that Duren told the Haires that he needed money up front to cover the cost of ordering the doors and windows because he could not afford to pay for those materials himself. The check the Haires gave Duren for $3,862.16 was to cover the cost of the materials and allow Duren some profit. Instead of paying for the windows, either at the time that they were ordered or at the time they were received by Benthall Bros., Duren used the funds for his own personal use. Thus, Duren's use of the funds was "unauthorized," because the funds were used "in a manner or to an extent other than that to which the [Haires had] consented." Ind. Code 35-43-4-1(b)(2).
Therefore, we conclude that Duren's control of the funds was "unauthorized," as defined by Ind.Code § 35-43-4-1(b)(2).1
Duren additionally argues that there was no evidence that he had the necessary criminal intent to deprive the Haires of their property. "Intent is a mental function and without a confession, it must be determined from a consideration of the conduct, and the natural consequences of the conduct." Brant v. State, 535 N.E.2d 189, 191 (Ind.Ct.App. 1989). Accordingly, intent may be proven by circumstantial evidence. Johnson, 593 N.E.2d at 209. Further, Hart v. State, 671 N.E.2d 420, 426 (Ind.Ct. App.1996).
The evidence presented to the jury establishes that Duren accepted the Haire's money for the purpose of purchasing replacement windows and doors for the Haire's home. Duren used the funds for other purposes and never paid for the replacement windows and doors. The Haires made several attempts to contact Duren to determine when he would install the windows and doors, but Duren never responded to the Haires. Duren failed to perform on any part of his agreement with the Haires. All of this evidence leads to the inference that Duren knew his control over the funds was "unauthorized" and that he intended to deprive the Haires of the value of their property. Consequently, the jury's determination was supported by sufficient evidence.
Duren argues that the State improperly charged him with theft when he should have been charged under the more specific statute concerning home improvement fraud. See Ind.Code § 35-43-6. During trial, Duren twice moved to dismiss the State's Amended Information based on this argument. Both motions to dismiss were denied by the trial court.
In determining whether Duren was properly charged, we must construe the theft statute and the home improvement fraud statute.
When construing statutes, our primary goal is to determine ... legislative intent. Moreover, when two statutes address the same subject matter, they are in pari materia and we strive to harmonize them wherever possible. The legislature is presumed to have existing statutes in mind when it adopts a new law. However, a general rule of statutory construction states that when statutes cannot be harmonized and the legislature dealt with the subject matter in a detailed manner in one and a general manner in the other, the detailed statute prevails.
State v. Wynne, 699 N.E.2d 717, 719 (Ind. Ct.App.1998), trans. denied (citations omitted).
However, here the home improvement fraud statute2 and the theft statute do not necessarily cover the same subject matter. The home improvement fraud statute is intended to punish home improvement suppliers for fraud against home owners, including misrepresentations, intentional nonperformance, deceptive practices, unconscionable contract prices, and failure to comply with Ind.Code § 23-15-1 relating to the use of assumed names or misrepresenting or concealing of the home improvement supplier's personal or business name or business address.
The theft statute is intended to punish individuals for "knowingly or intentionally exert[ing] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use." Ind.Code § 35-43-4-2(a).
Under the home improvement fraud statute, a home improvement supplier can be guilty of home improvement fraud without exercising unauthorized control over another's property. As mentioned, a home improvement supplier can be guilty of home improvement fraud based on the various circumstances as set forth in the statute. For example, a home improvement supplier can be guilty of home improvement fraud for misrepresenting or concealing the home improvement supplier's real name, business name, or business address. Ind.Code § 35-43-6-12(a)(6). From this...
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