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People v. Hofer

February 27, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANIEL B. HOFER, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, No. 98-CF-535 Honorable Kathy Bradshaw-Elliott, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Schmidt

[8]  Following a bench trial, the defendant, Daniel B. Hofer, was convicted of home repair fraud (815 ILCS 515/3 (West 1998)) and was sentenced to, inter alia, 30 months' reporting probation and 60 days' home detention. On appeal, the defendant argues that the State failed to prove the elements of the offense beyond a reasonable doubt. The State contends that this argument is waived. We rule that the defendant's argument is not waived and affirm.

[9]  BACKGROUND

[10]   The complainant, Victor Bruce Cutright, testified that he is a teacher and he lives on a farm near the town of Grant Park. In March 1998, he contacted two carpenters about constructing "a pole building, a farm building" on his property. Both of the carpenters said they were unavailable to construct the building. The defendant testified that after he spoke with one of these carpenters, he contacted Cutright and offered to construct the building. The defendant was doing business as Prairie State Post Frame.

[11]   On March 4, 1998, the defendant went to Cutright's residence and discussed the project. The two men executed a written agreement for construction of the "pole barn." The defendant testified that the building was to be located "toward the back half of [Cutright's property]." The defendant stated that in the "main area where [Cutright] lives, there was a--like a block type building. And it was to be to the west of that."

[12]   Under the agreement, Cutright was to pay the defendant $16,000 on the following schedule: 25% as a down payment, 50% when the building was framed, and the remaining 25% upon completion. Cutright wrote a check to the defendant for $4,000 on March 4, 1998, which the defendant cashed on March 5, 1998.

[13]   The defendant told Cutright that he would order the materials for the building through Menards. Under the terms of the agreement, the defendant was responsible for obtaining blueprints, a building permit, an insurance certificate, and ordering the building's trusses.

[14]   Cutright testified that on March 14, 1998, the defendant came to Cutright's "residence," where the two men dismantled a lean-to structure attached to a barn. Cutright told the defendant that he would like to increase the size of the pole barn because of the space now vacated by the lean-to. The defendant told Cutright that increasing the building's size was "not a problem." The defendant stated that he would revise the proposal and get back to Cutright about the construction project.

[15]   Cutright had no contact with the defendant until late April or early May when Cutright "ran into" the defendant at a local fish fry. Cutright asked the defendant about ordering the trusses, the blueprints, the building permit, and the insurance certification. The defendant assured Cutright that he was "working on it" and that he would "drop it by" for Cutright. Cutright testified that the defendant did not perform any of his obligations under the agreement. Cutright said that he called the defendant by telephone at least two dozen times on different days of the week and different times of day, but the defendant never answered.

[16]   The defendant testified that he submitted a material list to Menards on May 12, 1998. However, Cutright stated that he contacted an employee of Menards, who said Menards had not received any order for materials under the name Cutright, Hofer, or Prairie State Post Frame.

[17]   An architect, John Larson, testified that the defendant contacted him about drawing the blueprints for the building for $350. Larson said that he met with the defendant on June 4, 1998, about the blueprints and that the defendant paid him $300 on June 6, 1998. Larson stated that he delivered the blueprints to the defendant on June 29, 1998, whereupon the defendant paid Larson the remaining $50. On cross-examination, the defendant denied having met with Larson on June 4, 1998. The defendant also denied having paid Larson $300 on June 6, 1998. The defendant stated that he received the blueprints from Larson on July 2, 1998. Cutright submitted that the first time he had learned that the blueprints existed was on the morning of the trial.

[18]   Cutright testified that on June 22, 1998, he contacted the sheriff's department about the defendant's failure to perform on the contract and failure to communicate with him. Eventually, Cutright contacted the State's Attorney's office, the Attorney General's office, and his private attorney about the matter.

[19]   On July 8, 1998, Cutright's attorney sent a letter to the defendant demanding repayment of the $4,000 down payment. In the letter, Cutright's attorney stated that the defendant was not to do any work on the building project.

[20]   On August 7, 1998, the State charged the defendant with aggravated home repair fraud (815 ILCS 515/5 (West 1998)). At the conclusion of the trial, the State asked the court to find the defendant ...


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