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State v. Byington

Court of Appeals of Missouri, Eastern District, Second Division

March 12, 2019


          Appeal from the Circuit Court of Ste. Genevieve County Hon. Sandra Martinez

          ROBERT G. DOWD, JR., JUDGE

         Robert Byington ("Defendant") appeals from the judgment entered on his conviction after a jury trial for one count of lien fraud. We affirm.

         Viewed favorably to the State, the evidence at trial showed the following. Seborn Cole hired Defendant to hang drywall at his home in Ste. Genevieve County on August 21, 2006. The proposal was $23, 875 for labor and material, which Cole accepted. Cole paid Defendant on that date for the materials, as confirmed by Defendant's note on the contract: "$8, 500 material draw to start, paid 8-21-06, check number 12373." Defendant told Cole he needed that $8, 500 to purchase materials from a supplier in St. Louis, but that is not what Defendant did. Instead, he deposited that check two days later into his business account and paid off other outstanding bills. One outstanding bill was for materials on a previous job purchased from the local building materials supplier, Farmington Building Supply, which Defendant paid off on September 19. A few days later, Defendant finally placed the first order for materials for the Cole job from Farmington. Cole had testified that Defendant told him the month-long delay was because he was having trouble getting the supplies from St. Louis, which caused him to change his mind and use Farmington. He did not tell Cole that he had spent the materials money on other things.

         The owner of Farmington testified that from September 25 through October 25, 2006, Defendant made orders from Farmington for the Cole project on credit. Defendant did not tell Farmington that he had actually already been paid for those materials, and thus had he not spent it on other things, could have purchased those materials cash on delivery. Defendant has never paid Farmington anything for those materials.

         Defendant completed the work on Cole's home on November 3, 2006. Cole fully paid Defendant for all that work and obtained lien waivers from Defendant. Defendant did not tell Cole that he had not paid Farmington for the materials, nor did he explain that the lien waivers did not protect Cole from lien claims by Farmington, though Defendant knew at the time he signed them that Farmington had not been paid. At the end of November or early December of 2006, Farmington learned that Defendant had finished the Cole project and had been fully paid, but had failed to pay Farmington. Eventually, Farmington filed a lien on Cole's property.

         Defendant testified at trial that he had no intention of never paying Farmington. The jury did not accept this defense and found him guilty of lien fraud under Section 429.014.1. The trial was in 2011, and after his conviction, the court suspended imposition of sentence, placing Defendant on probation for five years and ordering him to pay over $12, 000 in restitution. Defendant absconded for several years but turned himself in August of 2017, admitting violations of the terms of his probation. The court revoked probation and deferred sentencing for a month to allow Defendant to pay some of the restitution he still owed. Defendant failed to make any payments, and the court declined his request for further extensions. The court sentenced him to seven years' imprisonment. This appeal follows.[1]

         All three of Defendant's points on appeal relate to the requisite mens rea to commit lien fraud under Section 429.014, namely the "intent to defraud":

Any original contractor, subcontractor or supplier who fails or refuses to pay any subcontractor, materialman, supplier or laborer for any services or materials provided pursuant to any contract referred to in section 429.010, 429.012 or 429.013 for which the original contractor, subcontractor or supplier has been paid, with the intent to defraud, commits the offense of lien fraud, regardless of whether the lien was perfected or filed within the time allowed by law.

         Section 429.014.1. Defendant admits that he was the original contractor and that the evidence showed he committed the actus reus of this crime: he failed to pay a supplier, here Farmington, for materials provided pursuant to a contract to provide work on Cole's home for which Defendant had been paid. But he contends there was insufficient evidence of his intent to defraud Farmington, and evidence that might show he intended to defraud Cole is insufficient evidence of his intent with respect to Farmington. Thus, he asserts in his first point that the trial court erred in not granting his motion for acquittal at the close of evidence and, in his second point, that the State's arguments that intent to defraud was proven by Defendant's misrepresentations to Cole were improper. In his third point on appeal, Defendant argues that the court abused its discretion in excluding evidence of his intent to pay off his debt to Farmington after the Cole job ended with the profits of a subsequent job.[2]

         Each point depends in some way on our interpretation of the lien fraud statute. Statutory interpretation is a question of law that we review de novo. State v. Haynes, 564 S.W.3d 780, 784 (Mo. App. E.D. 2018). Our goal is to ascertain the intent of the legislature from the plain and ordinary meaning of the language used in the statute. Id. Though it was enacted over 30 years ago, we have found no appellate case involving a criminal prosecution for lien fraud under Section 429.014.1.[3] While we are the first court to interpret the meaning of "intent to defraud" in this statute, the plain and ordinary meaning of that mental state in other crimes is well-established. "Intent to defraud" means having the purpose or design to deprive someone of a lawful right, interest or property by fraudulent means. State v. Harris, 313 S.W.2d 664, 670 (Mo. 1958) (applying definition to Section 560.270, now repealed, receipt of stolen property "with intent to defraud"); see also State v. Ciarelli, 366 S.W.2d 63, 67 (Mo. App. 1963) (same); State v. Morin, 873 S.W.2d 858, 865-66 (Mo. App. S.D. 1994) (applying definition to Section 407.020, unlawful practices done "with intent to defraud"); State v. Sinner, 779 S.W.2d 690, 694 (Mo. App. E.D. 1989) (applying definition to Section 143.931, failure to file tax return with "intent to defraud"); State v. Wade, 815 S.W.2d 489, 491 (Mo. App. S.D. 1991) (applying definition to Section 570.090, acts of forgery committed "with the purpose to defraud").

         Here, the parties do not disagree about what it means to have the intent to defraud, they disagree about who the defendant must intend to defraud in a lien fraud case. Defendant contends that because Farmington is the identified victim of the crime, the State must show that he intended to defraud Farmington. The State argues that general intent to defraud is sufficient, likening this case to a forgery. We agree with Defendant.

         When fraudulent intent is an element of the crime, there must be "in connection with the act done attending circumstances which bespeak fraud;" that is, a "situation where common experience finds a reliable correlation between the act and a corresponding intent." State v. Inscore, 592 S.W.2d 809, 811 (Mo. banc 1980) (discussing 561.450, so-called "confidence game statute," now repealed); see also State v. Elam, 646 S.W.2d 834, 836-37 (Mo. App. W.D. 1982) (discussing Section 570.129, crime of passing bad checks); State v. Thurman, 692 S.W.2d 317, 318 (Mo. App. E.D. 1985) (discussing stealing by deceit, Section 570.030). Thus, for lien fraud under Section 429.014.1, there must have been a correlation between the act of failing or refusing to pay the subcontractor, materialman, supplier or laborer and the intent to defraud. Because the actus reus in this statute is specific to a particular individual-i.e. the subcontractor, materialman, supplier or laborer-the intent to defraud must correspond to the failure to pay that particular person. In this way, lien fraud is unlike the forgery statute, in which the acts that constitute forgery are not specific to a particular individual. See Section 570.090.[4] Our courts have said that forgery can be proven by evidence of general intent to defraud and the State "need not prove the specific intent to defraud some particular person;" in fact, intent to defraud can be inferred from the act of forgery itself. State v. Smothers, 297 S.W.3d 626, 633 (Mo. App. W.D. 2009); see also State v. Johnson, 855 S.W.2d 470, 473 (Mo. App. W.D. 1993). But for lien fraud, the intent to defraud must correlate to an actus reus that has a specific victim and thus the intent must be to deprive that particular person of his property by fraudulent means.

         We turn now to the first point on appeal: the sufficiency of the evidence of Defendant's intent. There is direct evidence that Defendant was dishonest with Cole, which Defendant insists shows, at worst, an intent to defraud only Cole. But like all subjective mental states, "intent to defraud" is rarely capable of proof by direct evidence and may be-and usually is-proven entirely by circumstantial evidence. See Inscore, 592 S.W.2d at 811. Defendant's behavior with Cole relating to the payments that were supposed to be made to ...

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