White v. State
| Docket Number: | 2010-KM-01850-COA Linked Case(s): 2010-KM-01850-COA ; 2010-CT-01850-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-25-2011 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Criminal misdemeanor - Home-repair fraud - Sufficiency of evidence - Jury instruction - Section 97-23-103 - Expert testimony Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee, Roberts, Maxwell and Russell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - MISDEMEANOR |
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| Trial Court: |
Date of Trial Judgment: 09-15-2009 Appealed from: Madison County Circuit Court Judge: Edwin Y. Hannan Disposition: CONVICTED OF MISDEMEANOR HOMEREPAIR FRAUD AND SENTENCED TO SIX MONTHS IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY, WITH ALL BUT FIFTEEN DAYS OF SAID SENTENCE CONDITIONALLY SUSPENDED, AND TO PAY A $1,277 FINE AND $37,539.33 IN RESTITUTION Case Number: CI2009-0596-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Benjamin White |
KEVIN DALE CAMP, JOHN MICHAEL DUNCAN |
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| Appellee: | State of Mississippi | OFFICE OF ATTORNEY GENERAL: SCOTT A. JOHNSON LINDA COSTON DAVIS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Criminal misdemeanor - Home-repair fraud - Sufficiency of evidence - Jury instruction - Section 97-23-103 - Expert testimony |
| Summary of the Facts: | Benjamin White was convicted of misdemeanor home-repair fraud and was sentenced to six months in the custody of the Sheriff of Madison County, with all but fifteen days of said sentence conditionally suspended, and to pay a $1,277 fine and restitution in the amount of $37,539.33. White appealed to circuit court which affirmed. White appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence White argues that he was not guilty of home-repair fraud, because as his expert witness testified, the $53,050 paid by the homeowner was not disproportional to the work done on the project. White also argues that evidence showing he had failed to pay some of his subcontractors was both irrelevant and prejudicial because whether or not he paid his subcontractors had no relation to the charges against him for home-repair fraud. The State prosecuted White on the basis that he entered into a written contract with the homeowners for certain renovations and additions to their home with no intention of performing the promises set forth therein or that he knew those promises would not be performed. The evidence shows that White told the homeowner following their December 16 conversation that he had purchased building materials for the project with the funds the homeowners had provided and that the materials would be delivered to the job site. They were not. White later gave a statement in which he justified essentially every dollar advanced to him. The only building materials mentioned in the statement, however, were those for the concrete foundation, which everybody agrees had been completed prior to December 16. The State’s evidence significantly contravened the value of the other work/items listed in the statement, and the jury obviously rejected the information provided by White’s expert. One can logically conclude from White’s reported conduct in the matter (e.g., misrepresenting that materials would be delivered, failing to pay his subcontractors as promised, not responding to the homeowners’ repeated attempts to contact him, etc.) that he used the provision in the contract, which allowed him to cease work on the project, as a pretext to walk away from the promises he knew would not be performed, thereby concealing his intent. Viewing the evidence in the light most favorable to the verdict, a reasonable fact-finder could have found the elements of the crime beyond a reasonable doubt. Issue 2: Jury instruction White argues that the county court erred in denying a defense jury instruction because it appeared to work an “absolute defense” for White to the crime of home-repair fraud. Section 97-23-103 contains no language that excuses a person’s criminal culpability for entering into a contract with a homeowner with promises of performance the person knows will not be performed, based on the homeowner’s subsequent conduct in relation to the contract. Accordingly, the jury instruction incorrectly stated the law and was properly denied. Issue 3: Expert testimony White argues that the judge’s determination of the amount of restitution owed was fundamentally flawed because the judge refused to take into consideration the estimates presented by his expert witness. Many of the expert’s cost estimates were based on White’s statement provided to the AG investigator, much of which was negated by the State’s evidence. This, of course, brought into question the credibility of the expert’s cost estimates. The county court, nonetheless, accepted some of the cost estimations and rejected others. Sitting as fact-finder in the sentencing phase, the county court had the discretion to do so. |
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