Landscaper’s home fraud conviction vacated

A man convicted of home-improvement fraud after being hired to landscape a yard had his conviction vacated Tuesday, when the Indiana Court of Appeals found his conduct did not fall under the home improvement fraud statute.

When Alex Ramsey began building a new home in Wabash County in 2013, he hired Matthew Reust to complete a variety of work on the property, including landscaping. Reust estimated the work would cost $22,749, and Ramsey and his wife agreed to the price.

Meanwhile, Tim Howell Construction wrote Reust a check for $15,000 as an advance payment toward the landscaping job, unbeknownst to Ramsey, who later paid an additional $5,000.

After receiving the payment, Reust only completed a small amount of the landscaping work, was uncommunicative and unresponsive to both Ramsey and Howell, and ultimately told them to find another landscaper. He did not refund $20,000 he received to complete the landscaping work and did not return to the site to finish the project.

Since Reust’s conduct straddled the effective date of the criminal code statutory changes in July 2014, the state charged him under both the former and amended statutes. He was charged with Class C felony home improvement fraud and Class D felony theft for the period of May 1, 2014, through June 30, 2014, and was also charged with Level 5 felony home improvement fraud and Level 6 felony theft for the period from July 1, 2014, through April 7, 2015.

The state argued during closing that the jury should not convict Reust of four counts but should determine on what dates the offenses were committed. Count II was ultimately dismissed, and the jury found Reust guilty of the Level 5 and Level 6 felonies.

Addressing the issue of whether the home improvement fraud statute applied to Reust’s acts, the Indiana Court of Appeals agreed with his assertion that the plain language of the statute is applicable to real property used in whole or in part as a dwelling by a consumer.

“We agree with Reust that the plain language of the statutes defining home improvement and dwelling require the consumer to live in the dwelling at the time of the home improvement. This reading of the statutes does not conflict with the statutory exemption for new construction,” Senior Judge Betty Barteau wrote for the appellate court.

“We conclude that Reust’s conduct did not fall under the Home Improvement Fraud Statute. The landscaping project Reust was to perform was ancillary to the construction of the Ramseys’ new home. In fact, a line item for landscaping was included in the contract between the Ramseys and Howell,” Barteau continued. “Because this is landscaping at a new home construction site, and new home construction is excluded under the terms of the statute as it is not residential property, Reust’s landscaping is not an alteration, repair, or modification of residential property.”

The appellate court thus reversed Reust’s conviction for home improvement fraud and remanded with instructions to vacate that conviction.

However, it affirmed Reust’s theft conviction in Matthew E. Reust v. State of Indiana,18A-CR-2887, finding sufficient evidence.

Specifically, the COA concluded that at a minimum, Reust received $20,000 for performing only $4,500 of landscaping work. As a result, Ramsey’s losses were at least $15,500.

The appellate court therefore remanded with an order for the Wabash Circuit Court to resentence Reust for his theft conviction and to hold a restitution hearing for an accurate determination of the amount of restitution owed.