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06/24/96 PEOPLE STATE ILLINOIS v. DAN WATTS

June 24, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAN WATTS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94-CF-1754. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication July 23, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Defendant, Dan Watts, was charged by indictment with one count of theft (720 ILCS 5/16--1(a)(2)(A) (West 1994)) in that he knowingly obtained, by deception, control over the property of Donald and Marie Lutz (owners), having a total value of $10,000 but less than $100,000, by accepting money from the Lutzes and promising to construct an addition to their home which he did not intend to construct, and one count of home repair fraud (815 ILCS 515/3(a)(1) (West 1994)) in that he knowingly entered into a contract with the Lutzes to construct an addition to their home, promising performance which he did not intend to perform. Following a bench trial, the court found defendant not guilty of the theft charge but guilty of home repair fraud. Defendant filed a motion for new trial, which the court denied. The court then sentenced defendant to 24 months' probation and 6 months' periodic imprisonment and ordered defendant to make restitution in the amount of $12,000 and to undergo alcohol and drug testing and treatment. The court denied defendant's subsequent motion for reconsideration of his sentence, and this appeal ensued.

On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt of home repair fraud, as insufficient evidence existed to show that he intended to commit the offense; (2) the Home Repair Fraud Act (815 ILCS 515/1 et seq. (West 1994)) is unconstitutional and violates due process of law under the United States and Illinois Constitutions because (a) it shifts the burden of persuasion to the defendant and (b) it fails to require a criminal purpose; (3) the Home Repair Fraud Act violates equal protection guarantees of the United States and Illinois Constitutions because it denies equal treatment for similarly situated persons; and (4) the restitution order should be reversed, as the trial court failed to consider defendant's financial ability to make the payments ordered in the time and manner specified.

We will limit our recitation of the facts to only the information essential to an understanding of the specific issues we have addressed.

On February 12, 1994, defendant and the owners entered into a written contract whereby defendant was to construct an addition to the owners' home. Prior to signing the contract, the owners had given defendant checks for start-up costs and for procuring equipment. At the time of signing they made additional payments to defendant for obtaining supplies and paying for permits. The contract provided that one-third of the total cost of the project was to be paid to defendant at the time the contract was signed, which the owners had done. The contract did not specify a starting date for defendant's performance, but it provided that defendant was to receive another payment of one-third of the total cost when work commenced.

After architectural plans were approved and building permits were obtained on April 12-13, defendant arrived at the jobsite with workmen on April 19, 1994, to place fencing around trees. On the next day, April 20, defendant arrived with his subcontractor, who excavated for the foundation with a backhoe. After the excavation was completed by the subcontractor, the parties agreed that a problem existed because the existing home was found to have a trench foundation which was not as deep as the adjoining hole which was dug for the new foundation. Defendant met with the architect and a building department representative concerning how to handle this problem which potentially jeopardized the integrity of the existing structure. A controversy developed between defendant and the owners concerning the subcontractor's excavation and other matters relating to the work. The owners notified defendant that they had hired another contractor to lay the foundation and refused to make the contractual one-third payment, which was to coincide with commencement of the work. After three or four days of work, defendant, on April 25, ordered his employees off the jobsite. Thereafter, defendant contacted the owners and offered to resume work at his own expense provided he was paid within 10 days of completion. The owners refused this offer.

At the conclusion of the trial, the court found that the State had failed to prove defendant guilty of the theft charge because there was insufficient evidence to establish that defendant had no intention of performing his promised duties. As to the home repair fraud charge, the court found defendant guilty based on defendant's failure to rebut the State's evidence that he had failed to employ qualified personnel to perform the excavation of the foundation for the addition. The court relied in its finding on a rebuttable presumption of intent or knowledge which arises under the provisions of the home repair fraud statute when the State has proved certain predicate facts enumerated in the statute. 815 ILCS 515/3(c) (West 1994).

In light of our disposition of this appeal, we need address only defendant's contention that section 3(c) of the Home Repair Fraud Act creates an unconstitutional mandatory presumption of criminal intent thereby shifting the burden of persuasion to the defendant. The provisions of the statute applicable to the facts of this case provide:

"(a) A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:

(1) *** promises performance which he does not intend to perform or knows will not be performed; ***

***

(c) For purposes of subsection (a), paragraph (1), it shall be a rebuttable presumption of intent or knowledge that a person promises performance which he does not intend to perform and [sic ] knows will not be performed when, after no performance or no substantial performance of a contract or agreement for home repair, he fails or refuses to return payments made by the victim and he:

***

(5) fails to employ qualified personnel necessary to perform the home repair[.]

Intent and knowledge shall be determined by an evaluation of all circumstances surrounding a transaction and the determination shall not be limited to the time of contract ...


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