Sunday, March 06, 2016

Jury Rejects 'It's A Civil Matter' Defense, Takes Under An Hour To Slam Contractor w/ Guilty Verdict In Home Improvement Ripoff; Suspect Allegedly Told Cop That After Running Out Of Cash To Finish Job, He Awaited A Possible Civil Lawsuit By Homeowner & Would've Stiffed Her Again By Filing Bankruptcy

In Clearfield, Pennsylvania, the Centre Daily Times reports:
  • It took a jury less than an hour to find a Philipsburg contractor guilty of theft [] in Clearfield County Court.

    Brian T. Barton, 46, was charged with theft by deception, theft by failure to make required disposition of funds, home improvement fraud-false or misleading statement, and home improvement fraud-receiving advanced payment for not completing a home improvement project in Osceola Mills. He was convicted on all charges after a two-day trial.

    Testimony on the first day came from the victim who entered into a home improvement contract with Barton Contracting and owner Brian Barton that was signed Sept. 8, 2013, with work to be completed by May 2014 for a total cost of $90,000, according to the affidavit of probable cause. The project was an addition to the current building of two bedrooms and a bathroom on the first level of the house as well as an expansion to the kitchen.

    The victim issued Barton a check for $30,000. In November 2013 she issued a second check for $30,000 and in March 2014 another check for $10,000. He cashed all three checks totaling $70,000. He did not complete the work or return the money.

    Scott Lukens, of Lukens Kitchens, testified [] that when he went through the home it had wiring that was deficient and problems with the water/sewer lines. The cost for him to install new wiring in the home and put the water/sewer lines up to code was more than $14,000. The proposed cost to finish the project which would include insulating the new structure, floor coverings, kitchen/bath cabinets, porch railing, exterior stairs and paint would be more than $60,000.

    Former Decatur Township police Sgt. James Ward testified that he was contacted by the victim who was complaining about her contractor, Barton. She said after she paid him $70,000 she stopped paying and he stopped working on the home. He said he didn’t have any money to give back to the victim.

    When Ward spoke with Barton in December 2014, Barton explained he under bid the job and ran out of money to complete it. He had no plans to go back to finish the job. He was going to wait until she filed a civil case and he’d then file for bankruptcy, Ward said.

    The defense had one witness, Chris Hockenberry, a general contractor who reviewed the project for Barton. He testified that the cost for this project as completed would be more than $83,000. This was based on drawings provided to him by Barton.

    There was no further testimony on Friday, the second day of the trial.

    In his closing arguments, Brian Jones, attorney for Barton, argued that this was not a criminal case(1) and stated that District Attorney William A. Shaw Jr. had not proven Barton’s intent was to defraud the customer.

    Jones pointed out there was no testimony regarding the amount of money Barton put into the project.

    “He has no idea how much the defendant spent on materials and labor, or what he put in his pocket,” Jones stated. There were no witnesses saying he intentionally kept the money.

    Shaw argued in his closing that Barton underbid the job to lure the victim into a contract. His intention was obvious when Barton said he would declare bankruptcy if she sued him.

    And he walks away with that money in his pocket.”

    Shaw stated to the press in an interview after the completion of the trial that the Home Improvement Consumer Protection Act has made it easier to identify and prosecute these cases. He encouraged anyone contemplating hiring a contractor to go to the attorney general’s website to see if they have registered.
Source: Philipsburg contractor found guilty of theft (Man charged for not completing home improvement project; Attorney argues case not criminal, DA didn’t prove intent to defraud).
-----------------------------
(1) As a reminder to those lowlifes and others who mistakenly assume that these apparent ripoff deals are nothing more than civil cases, it is clear that all the sophisticated paperwork in the world (ie. business/purchase contracts, leases, closing statements, etc.) isn't enough to permit scammers to insulate themselves from criminal prosecution when they target their victims with legitimate-looking business propositions when screwing their victims over. Criminal prosecutors have the authority to "pierce through" such attempts to disguise a blatant criminal real estate ripoff as a common, legitimate business deal.

Clear precedent exists for such a "pierce through" approach to overcome any objections that will certainly arise when the scammers make the argument that the arrangement was just a civil transaction that, if challenged, should be done with a civil lawsuit, not a criminal prosecution. See, for example:

People v. Frankfort, (1952) 114 Cal.App.2d 680, 700; 251 P.2d 401:
  • The simple answer to this argument is that "The People prosecuting for a crime committed in relation to a contract are not parties to the contract and are not bound by it. They are at liberty in such a prosecution to show the true nature of the transaction." (People v. Chait, 69 Cal.App.2d 503, 519 [159 P.2d 445]; People v. McEntyre, 32 Cal.App.2d Supp. 752, 760 [84 P.2d 560]; People v. Jones, 61 Cal.App.2d 608, 620 [143 P.2d 726]; People v. Pierce, supra, p. 605.)
People v. Jones, (1943) 61 Cal.App.2d 608, 620 [143 P.2d 726]:
  • Defendant argues that the deal with each "seller" was a civil transaction; [...] Cloaked in the draperies of his corporation and pretending to act in its behalf, he boldly approached his unsuspecting victims.

    [***]

    Although each deal in its incipiency bore the color and trappings of a normal, civil contract, yet when subjected to a postmortem it exhaled the stench and disclosed the carcass of a fraud. (People v. Epstein, 118 Cal.App. 7, 10 [4 P.2d 555].) There appears no sign of good faith at any turn. Each taking and appropriation was a grand theft.

    The use of the corporate name and the promises made in accomplishing his purpose were a camouflage of such common variety that no excess of genius was required to discern the fraud. Parol evidence of all that occurred was admissible to show the intention of defendant. (People v. Robinson, 107 Cal.App. 211, 221 [290 P. 470].)

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