State v. Shaw

• Decision Date: 23 February 1993
• Docket Number: No. 74790,74790
• Citation: 847 S.W.2d 768
• Parties: STATE of Missouri, Respondent, v. Charles Warren SHAW, Appellant.
• Court: Missouri Supreme Court

Page 768

847 S.W.2d 768

STATE of Missouri, Respondent, v. Charles Warren SHAW, Appellant.

No. 74790.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1993.

J. Russell Carnahan, Rolla, for appellant.

William L. Webster, Atty. Gen., Douglas M. Ommen, Karl F. Findorff, Asst. Attys. Gen., Jefferson City, for respondent.

ROBERTSON, Chief Justice.

The State charged Charles Shaw ("Shaw") with four counts of unlawful merchandising practices in violation of Section 407.020, RSMo 1986, ¹ a Class D felony. Following a bench trial, the trial court convicted Shaw on each count and sentenced him, as a prior offender ² under Section 557.036, to four concurrent four-year terms. Shaw appealed to the Court of Appeals, Southern District, challenging, among other things, the constitutionality of Section 407.020 on due process grounds. We have exclusive appellate jurisdiction of appeals challenging the validity of statutes. Mo. Const. Art. V, § 3. Therefore, the court of appeals properly transferred the case to this Court. We affirm Shaw's conviction on all counts.

I.

Among Shaw's claims is an attack on the sufficiency of the State's case against him. The evidence is restated below in the light most favorable to the trial court's judgment, including all reasonable inferences tending to support that judgment and ignoring all contrary inferences. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982).

Shaw owned and operated Shaw's Pest Control, Inc., and Shaw's Security Home Repair in Dixon, Missouri. Shaw used his pest control business as a pretext to inspect his victims' homes and, apparently without conscience, "discover" the need for foundation repair work which his home repair enterprise would offer to provide.

A.

As to the first count of the information, the evidence showed that Tom Shaw ("Tom"), Charles Shaw's nephew and partner, approached Mrs. Bernice Emmons, an 82-year-old woman who lived alone. Tom asked Mrs. Emmons for permission to inspect her basement for termites. Tom inspected the basement and found no termites, but informed Mrs. Emmons that the basement wall had several cracks that needed repair. Tom explained that proper correction of this problem required digging the earth from around the foundation to the bottom of the basement wall and sealing the cracks from the outside. At this point in the conversation, Shaw and Robert Richey, another employee of Shaw, joined Tom and Mrs. Emmons. When Mrs. Emmons expressed some doubt and sought to delay the work until after the weekend, Tom indicated that he "had the men" and "wanted to start right off."

Tom proceeded to total an estimate for the foundation work and remarked as he did so that the back porch of Mrs. Emmons' house was "breaking away" and that "it needed some support under it." Shaw heard these representations, but said nothing. Tom finished the estimate and informed Mrs. Emmons that the men could complete the repairs for $4,000.00. When Mrs. Emmons hesitated, Tom dropped the price to $3,000.00. Mrs. Emmons signed the contract in the presence of Shaw; her initial down payment was deposited in the Shaw's Pest Control, Inc., bank account controlled by Shaw.

Workers began performing the work at Shaw's instruction. When they had dug but two feet, Shaw instructed the workers to "just go ahead and fill them back in. There's no sense in digging down to the footing." Turning from the uncompleted sealing of the basement cracks, Shaw's cohorts found that they could not raise the porch as promised. Instead, Tom told Mrs. Emmons that they would install supports to prevent further slippage.

The following day, in the presence of Shaw who stood mute, Tom told Mrs. Emmons that he noticed the kitchen floor and stairwell sagging badly. Tom also told Mrs. Emmons that her gutters needed repairing. Mrs. Emmons agreed to pay an additional $5,500.00 for Shaw's employees to install support beneath her kitchen, repair the gutters, and install a facia board and soffit. After "inspecting" the gutters more closely, Tom told Mrs. Emmons she needed new gutters. She agreed to pay an additional $2,000.00 for the gutters. In all, Mrs. Emmons paid Shaw's company $10,500.00.

The State's experts testified that the work was unnecessary; that Shaw and his employees did not seal the basement cracks all the way down to the footings or install the facia board and soffit; that the brace installed under the porch did not reach the ground and thus offered no support; and that the reasonable and customary charge for the work that Shaw and his employees contracted to perform would have been $1,422.22.

B.

The second count involved an elderly couple named Shults. The evidence showed that Tom sought and was granted permission from Mr. and Mrs. Shults to inspect their home for termites. When the Shultses agreed, Tom told Richey, as Shaw listened, to go under the house and "come out and tell [the Shultses] that the floor joists were sagging and that it needed a vapor seal put under the house." Richey complied. At Tom's further direction, Richey told the Shultses that their porch sagged and needed additional support or it would continue to sink.

Tom offered to complete the necessary repairs for $3,600.00, but told Mr. and Mrs. Shults that he would reduce the price to $3,000.00 if they would authorize the work immediately. After the 84-year-old Mr. Shults agreed, Shaw told his workers not to install the new joists as promised. Instead, doubting Mr. Shults' ability to inspect much of the work because of his age and poor eyesight, Shaw told the workers to "scab on" new pine boards to the outside of existing joists close to the accessway. That way, in case Mr. Shults were able to bend over and do a cursory inspection, he would see what appeared to be new joists.

The State's experts again testified that none of the work at the Schultses was necessary and, indeed, that some of the work had a detrimental effect on the structural integrity of the house. The State's experts testified that the reasonable and customary charge for the work, assuming it had been necessary, would have been $288.20. The record reveals that Shaw deposited the $3,000.00 paid by the Shultses in the Shaw Pest Control, Inc., bank account.

C.

The third count of the State's information focuses on Mr. and Mrs. Vogt. The evidence showed that, while Shaw was overseeing the "work" on the Shultses' home, he invited Richey to accompany him to the nearby Vogt home to see if they could "pick up a thousand or two off Mr. and Mrs. Vogt." Shaw knew the Vogts; he had previously treated their home for termites.

Shaw went to the Vogts' door and asked to re-check the house for termites. The Vogts assented. Richey went under the house and emerged, in Shaw's presence, to tell the Vogts that their house sagged and needed additional support. Shaw assured the Vogts that the work was necessary to prevent extensive and costly future repairs. Shaw indicated that the repairs would cost $3,000.00, but offered to do the work for $1,800.00 because he had "a lot of cement on hand and didn't want to hold it over." In fact, Shaw had no cement on hand. His workers had to purchase cement before beginning work on the Vogt home.

Because of ill health, neither of the Vogts were able to confirm the need for the work or the manner in which it was performed. When they were told the job was finished, the Vogts made payments totaling $1,750.00. The State's experts testified that none of the work was necessary and, had it been necessary, the usual and customary charge would have been $152.34.

D.

The fourth count of the information centers on Shaw's work for the 67-year-old Mrs. Alta Land. The evidence showed that following the same modus operandi, Shaw approached Mrs. Land and asked to inspect her home for termites. Mrs. Land agreed. Shaw ordered Richey to inspect under the house. When he emerged, Richey told Shaw that he had found nothing wrong. Shaw insisted that Richey tell Mrs. Land that she needed a new beam and floor joists. Richey complied. After Richey informed Mrs. Land of her "problems," Shaw assured her that her house would continue to shift and settle without additional support. Shaw went into Mrs. Land's kitchen and remarked that the tile on the walls would crack and the ceilings could cave in if the house continued to shift. He told Mrs. Land that a fair price for the repairs would be $6,000.00 but, because she was a senior citizen on a fixed income, he would perform the work for $3,680.00 if she would agree to the contract that day. As with his other victims, Mrs. Land's poor health prevented her from confirming the "structural problems" Shaw had identified. She agreed.

When Shaw's workers discovered that there was no room under the house for all the supports that Shaw had promised, Shaw told them to "just forget about it. She [Mrs. Land] wouldn't know the difference."

After having secured a loan and after being told the job was completed, Mrs. Land paid Shaw the contract price. Again, the State's experts testified that none of the work was necessary and that if it had been necessary and had been performed properly, the reasonable and customary charge would have been $459.06.

II.

Section 407.020 provides in pertinent part:

1. The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce ... is declared to be an unlawful practice.

* * * * * *

3. Any person who willfully and knowingly engages in any act, use, employment or practice declared to be unlawful by this section with the intent to defraud shall be guilty of a class D felony.

[Emphasis added.] The amended four-count information tracks the language of this statute and avers that Shaw committed, or knowingly acted in concert with one who committed, the acts specified in the...