Parisi v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THOMAS PARISI, §
§ No. 174, 2015
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware,
v. § in and for New Castle County
§
STATE OF DELAWARE, § Cr. ID. No. 1402006756
§
Plaintiff Below, §
Appellee. §
Submitted: November 4, 2015
Decided: November 12, 2015
Before HOLLAND, VALIHURA, and SEITZ, Justices.
ORDER
This 12th day of November, 2015, it appears to the Court that:
(1) Thomas Parisi appeals from his September 21, 2011 Superior Court
conviction for criminal Home Improvement Fraud in violation of 11 Del. C. §
916(b). The court ordered Parisi to pay a $1,000 fine plus all surcharges and fees
and sentenced him to two years at Level V, suspended for one year at Level II.
Parisi challenges his conviction on the ground that the Superior Court erred when it
failed to grant his motion for judgment of acquittal. We hold that there was
sufficient evidence introduced by the State for a jury to find Parisi guilty beyond a
reasonable doubt. Accordingly, we affirm.
(2) In October 2013, Christopher and Lisa Finn hired Thomas Parisi to
construct a rooftop deck on the garage of their home in Wilmington, Delaware.
The Finns provided a down payment of approximately $7,000, representing half of
the total cost of the project. Although the contract itself did not specify a
completion date, the Finns and Parisi verbally agreed that if Parisi was going to do
the work, he must begin immediately in order to complete the deck before winter.
Parisi assured the Finns he would begin the project soon after they signed the
contract, and Parisi cashed their check less than twenty-four hours later.
(3) The Finns became concerned when, after several weeks, Parisi had
failed to obtain any of the permits or licenses necessary to start the work. The
couple sent Parisi multiple text messages asking for updates on the project.
Sometimes Parisi would respond with promises, and sometimes he would not
respond at all. Approximately one month after the parties signed the contract and
no work had been done on the deck, the Finns cancelled the contract. Parisi
promised to send the Finns a refund, but despite several requests, he did not refund
the payment. The Finns tried for several months to contact Parisi without success.
Parisi did not refund the money until September 30, 2014, nearly a full year later.
The State charged Parisi with Home Improvement Fraud in violation of 11 Del. C.
§ 916(b).
2
(4) At trial, Parisi testified that at the time he signed the contract with the
Finns, he was losing money on another project. By the time the Finns cancelled
the contract, Parisi had already spent their money on other business expenses,
including a new transmission for his truck. He had not spent any of their money on
a permit or materials for the job, and did not pay the Finns any interest for his use
of their money.
(5) At the end of the State’s case, Parisi moved for a judgment of
acquittal claiming that the State failed to prove all the elements of Home
Improvement Fraud, because the Finns knew Parisi was finishing other jobs and
cancelled less than thirty days after the contract was signed. The Court denied the
motion, noting that there was evidence that Parisi promised to apply for permits
and licenses immediately, and that despite the Finns’ various requests; Parisi gave
no indication whether he was following through on that understanding. Parisi also
did not return the Finns’ money for over ten months. The trial court denied the
motion again at the close of the defense case.
(6) The jury found Parisi guilty. On March 20, 2015, the Superior Court
ordered Parisi to pay a $1,000 fine plus all surcharges and fees. He was sentenced
to two years at Level V, suspended for one year at Level II.
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(7) On appeal from the denial of a motion for acquittal, this Court reviews
de novo 1 whether sufficient evidence was presented so that “any rational trier of
fact, viewing the evidence in the light most favorable to the State, could find [a]
defendant guilty beyond a reasonable doubt” on each element of the crime. 2 We
do not distinguish between direct and circumstantial evidence in this inquiry. 3
(8) Parisi argues that the State failed to present sufficient evidence to
establish the state of mind required to prove Home Improvement Fraud. In other
words, Parisi argues that there was insufficient evidence to prove that Parisi
intended to defraud the Finns. The State responds that Parisi never raised below an
argument implicating his mental state, and thus Supreme Court Rule 8 precludes
review other than for plain error. 4 Although Parisi did not specifically articulate
his state of mind argument to the Superior Court, he did argue that the State failed
to present evidence of each element of the crime. As Parisi’s mental state is an
essential element of the crime, the issue has been fairly presented below and the
limited review for plain error does not apply.
1
Brown v. State, 967 A.2d 1250, 1252 (Del. 2009).
2
Monroe v. State, 652 A.2d 560, 563 (Del. 1995) (emphasis in original) (citing Robertson v.
State, 596 A.2d 1345, 1355 (Del. 1991)); see also Cline v. State, 720 A.2d 891, 892 (Del. 1998).
3
Vincent v. State, 996 A.2d 777, 779 (Del. 2010).
4
Supr. Ct. R. 8; Turner v. State, 5 A.3d 612, 615 (Del. 2010) (“We generally decline to review
contentions not raised below and not fairly presented to the trial court for decision. This Court
may excuse a waiver, however, if it finds that the trial court committed plain error requiring
review in the interests of justice.”).
4
(9) As to the merits, Parisi was charged with Home Improvement Fraud
under 11 Del. C. § 916(b). The State had the burden to prove the following:
(b) A person is guilty of home improvement fraud who enters . . . into
a home improvement contract as the provider of home improvements
to another person, and who with the intent specified in § 841 of this
title:
....
(4) Receives money for the purpose of obtaining or paying for
services, labor, materials or equipment and fails to apply such money
for such purpose by:
a. Failing to substantially complete the home improvement for
which the funds were provided; or
b. Failing to pay for the services, labor, materials or equipment
provided incident to such home improvement; or
c. Diverting said funds to a use other than for which the funds
were received.5
(10) The prefatory language of the statute incorporates the mental state
found in 11 Del. C. § 841. There are two different standards under § 841. Section
841(a) provides that “[a] person is guilty of theft when the person takes, exercises
control over or obtains property of another person intending to deprive that person
of it or appropriate it.” 6 Section 841(b) states that “[a] person is guilty of theft if
the person, in any capacity, legally receives, takes, exercises control over or
obtains property of another which is the subject of theft, and fraudulently converts
5
11 Del. C. § 916(b)(4) (emphasis added).
6
11 Del. C. § 841(a) (emphasis added).
5
the same to the person’s own use.”7 The indictment charged Parisi with an intent
to appropriate, rather than fraudulent conversion. 8
(11) Relying on cases from other states with similar statutes, Parisi asserts
that under the language of § 841(b), the State had to prove intent to convert the
Finns’ money. In Zugehoer v. State, however, we held that the requisite intent
element could be satisfied by § 841(a), and need not be tied to § 841(b). 9 The
State therefore had to prove only that Parisi intended to deprive the Finns of, or
appropriate, their payment, rather than prove an intent to commit fraud. Because
we have already answered in the negative the question whether the State must
prove intent under § 841(b), this challenge is without merit.
(12) To survive a motion for judgment of acquittal, the State had the
burden to present sufficient evidence for a jury to find beyond a reasonable doubt
that Parisi appropriated the Finns’ money and used it for a purpose other than
building their deck. Though his conviction relies almost entirely on circumstantial
evidence, “Delaware law allows the State to convict an individual solely on
7
11 Del. C. § 841(b) (emphasis added).
8
App. to Opening Br. at 2.
9
Zugehoer v. State, 980 A.2d 1007, 1010 (Del. 2009) (“In Edwards v. State, this Court rejected
the suggestion that the jury should be instructed under the more generalized Section 841(b) and
‘call[ed] upon the Delaware Legislature to eliminate the “unnecessary” second paragraph of §
841 to remove the ambiguity created by that law . . . .’ Accordingly, in Delaware, when the jury
is instructed on the intent required by Section 841(b), the settled practice is to use the language
of Section 841(a), rather than of Section 841(b).”).
6
circumstantial evidence. We treat circumstantial evidence the same as testimonial
evidence, and draw inferences from that evidence.”10
(13) The State presented evidence that the Finns hired Parisi to build a
rooftop deck on the condition he begin work on the project immediately. The
Finns gave Parisi a $7,000 check which Parisi cashed within twenty-four hours of
receiving it. Over the following weeks, Parisi did not begin work on the deck, did
not obtain the permits necessary to begin the project, and was unresponsive to the
Finns’ various inquiries. After about one month passed and Parisi had done no
work on the project, the Finns cancelled the contract and demanded a full refund.
The Finns attempted to recover their down payment for several months without
success. In the meantime, Parisi had spent the money on general expenses to
maintain his business. Finally, Parisi did not return the money to the Finns for
over ten months after they cancelled their check. Thus, viewing this evidence in
the light most favorable to the State, a rational trier of fact could conclude beyond
a reasonable doubt that Parisi took the Finns’ money and used it for a purpose
other than building their deck. The motion was properly denied.
10
Vincent v. State, 996 A.2d 777, 779 (Del. 2010).
7
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
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