Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Ste. Genevieve County Hon. Sandra
G. DOWD, JR., JUDGE
Byington ("Defendant") appeals from the judgment
entered on his conviction after a jury trial for one count of
lien fraud. We affirm.
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
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.
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.
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.
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.
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.
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. 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").
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.
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. 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.
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 ...