No. 3--02--0758

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

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JUSTICE SCHMIDT delivered the opinion of the court:

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Following a bench trial, the defendant, Daniel B. Hofer, wasconvicted of home repair fraud (815 ILCS 515/3 (West 1998)) andwas sentenced to, inter alia, 30 months' reporting probation and60 days' home detention. On appeal, the defendant argues thatthe State failed to prove the elements of the offense beyond areasonable doubt. The State contends that this argument iswaived. We rule that the defendant's argument is not waived andaffirm.

BACKGROUND

The complainant, Victor Bruce Cutright, testified that he isa teacher and he lives on a farm near the town of Grant Park. InMarch 1998, he contacted two carpenters about constructing "apole building, a farm building" on his property. Both of thecarpenters said they were unavailable to construct the building.The defendant testified that after he spoke with one of thesecarpenters, he contacted Cutright and offered to construct thebuilding. The defendant was doing business as Prairie State PostFrame.

On March 4, 1998, the defendant went to Cutright's residenceand discussed the project. The two men executed a writtenagreement for construction of the "pole barn." The defendanttestified that the building was to be located "toward the backhalf of [Cutright's property]." The defendant stated that in the"main area where [Cutright] lives, there was a--like a block typebuilding. And it was to be to the west of that."

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% uponcompletion. Cutright wrote a check to the defendant for $4,000on March 4, 1998, which the defendant cashed on March 5, 1998.

The defendant told Cutright that he would order thematerials for the building through Menards. Under the terms ofthe agreement, the defendant was responsible for obtainingblueprints, a building permit, an insurance certificate, andordering the building's trusses.

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

Cutright had no contact with the defendant until late Aprilor early May when Cutright "ran into" the defendant at a localfish fry. Cutright asked the defendant about ordering thetrusses, the blueprints, the building permit, and the insurancecertification. 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 hisobligations under the agreement. Cutright said that he calledthe defendant by telephone at least two dozen times on differentdays of the week and different times of day, but the defendantnever answered.

The defendant testified that he submitted a material list toMenards on May 12, 1998. However, Cutright stated that hecontacted an employee of Menards, who said Menards had notreceived any order for materials under the name Cutright, Hofer,or Prairie State Post Frame.

An architect, John Larson, testified that the defendantcontacted 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 $300on June 6, 1998. Larson stated that he delivered the blueprintsto the defendant on June 29, 1998, whereupon the defendant paidLarson the remaining $50. On cross-examination, the defendantdenied having met with Larson on June 4, 1998. The defendantalso denied having paid Larson $300 on June 6, 1998. Thedefendant stated that he received the blueprints from Larson onJuly 2, 1998. Cutright submitted that the first time he hadlearned that the blueprints existed was on the morning of thetrial.

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

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

On August 7, 1998, the State charged the defendant withaggravated home repair fraud (815 ILCS 515/5 (West 1998)). Atthe conclusion of the trial, the State asked the court to findthe defendant guilty of the lesser included offense of homerepair fraud.

The court found the defendant guilty of the lesser includedoffense. In so ruling, the judge stated that she found Cutrightand Larson to be credible witnesses. She said that she found thedefendant not to be credible because he had lied about his twomeetings with Larson in early June.

The defendant filed a motion to reconsider the court'sfinding of guilt. In this motion, the defendant argued that theState failed to prove beyond a reasonable doubt that he did notintend to perform on the contract. The motion was denied.

The parties agreed that the defendant would pay Cutright$4,262.50 in restitution. The defendant then was sentenced andhe appealed.

ANALYSIS

The defendant contends that the State failed to prove theelements of the offense beyond a reasonable doubt. He submitsthat the breach of his promise to construct a pole barn did notestablish a violation of the Home Repair Fraud Act (Act) (815ILCS 515/1 et seq. (West 1998)).

The State argues that the defendant's issue is waived onappeal because the defendant failed to raise it in the trialcourt.

I. Waiver

A defendant may raise for the first time on appeal the issuethat the State failed to prove the elements of the crime beyond areasonable doubt. People v. King, 151 Ill. App. 3d 644, 503N.E.2d 384 (1987).

In this case, the defendant is raising a reasonable doubtargument for the first time on appeal. Under King, this issue isnot waived.

II. Reasonable Doubt

The defendant contends that the proposed construction of apole barn on Cutright's property did not fall within the ambit ofthe Act's definition of a "home repair."

When analyzing the sufficiency of the evidence, we reviewthe evidence in the light most favorable to the prosecution andconsider whether any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Barham, 337 Ill. App. 3d 1121, 788 N.E.2d 297 (2003).

Under the Act:

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

*** promises performance which he does not intend

to perform or knows will not be performed." 815 ILCS515/3(a)(1) (West 1998).

The Act contains the following definitions that are relevantto our inquiry:

"(a) 'Home Repair' means the fixing, replacing,altering, converting, modernizing, improving of or themaking of an addition to any real property primarilydesigned or used as a residence.

(1) Home repair shall include the construction,installation, replacement or improvement of driveways,swimming pools, porches, kitchens, chimneys, chimneyliners, garages, fences, fallout shelters, central airconditioning, central heating, boilers, furnaces, hotwater heaters, electrical wiring, sewers, plumbingfixtures, storm doors, storm windows, awnings and otherimprovements to structures within the residence or uponthe land adjacent thereto.

* * *

(c) 'Residence' means a single or multiple familydwelling, including but not limited to a single familyhome, apartment building, condominium, duplex ortownhouse which is used or intended to be used by itsoccupants as their dwelling place." (Emphasis added.)815 ILCS 515/2(a)(1), (c) (West 1998).

This court's research has not revealed any Illinois caseinterpreting the provisions of the Act at issue in this case. Therefore, we are called upon to interpret portions of the Act asa matter of first impression.

The cardinal rule of statutory construction is to determineand give effect to the intent of the legislature. People v.Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d 511 (2003). The bestindication of the legislature's intent is the language of thestatute. Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d 511. Suchlanguage should be given its plain or ordinary and popularlyunderstood meaning. Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d511.

When a statute provides a list that is not exclusive, thatis, when it uses the phrase "shall include," the Illinois SupremeCourt has stated that, "established rules of statutoryconstruction inform us that *** the class of unarticulated thingswill be interpreted as those that are similar to the namedthings." People ex rel. Birkett v. City of Chicago, 202 Ill. 2d36, 48, 779 N.E.2d 875, 882 (2002).

In the present case, the record indicates that the defendantentered into a written agreement with Cutright to build astructure that was referred to variously as "a pole building," "apole barn," and "a farm building." Although such a structure isnot explicitly listed in section 2(a)(1) of the Act, this sectioncontains a nonexclusive list. Under Birkett, the type ofbuilding proposed was similar to the types of structures named inthe list.

One can hardly drive through rural Illinois without noticingthe burgeoning number of "pole barns" or "Morton buildings" inthe yards of rural landowners. These buildings are to thecountry dweller or gentleman farmer what the garage is to thesuburbanite. However, no self-respecting "land baron" would eventhink about calling this building where he parks his pickuptruck, SUV, garden tractors, et cetera, a "garage." Nonetheless,we find that the construction of a pole barn behind plaintiff'shouse is sufficiently similar to, if not identical to, theconstruction of a garage, and therefore falls within thestatutory definition of home repair.

Further evidence also supported the conclusion that theproposed building at issue fell within the Act's definition of a"home repair." The parties referred to Cutright's propertythroughout the trial as his "residence." The defendant testifiedthat the proposed building was to be constructed within the "mainarea" where Cutright lives. The agreement was for the"construction" of a building similar to structures listed insection 2(a)(1), "upon the land adjacent" to Cutright'sresidence.

A rational trier of fact could have found beyond areasonable doubt that the defendant knowingly entered into anagreement with Cutright for a home repair, and knowingly promisedperformance which he did not intend to perform or knew would notbe performed. Taking the evidence in the light most favorable tothe prosecution, a rational trier of fact could have found thatthe State proved beyond a reasonable doubt that the defendantcommitted home repair fraud.

CONCLUSION

For the foregoing reasons, we affirm the judgment of theKankakee County circuit court.

Affirmed.

McDADE and SLATER, JJ., concur.