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State v. Burns

Court of Appeals of Ohio, Eleventh District, Portage

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
JAMES R. BURNS, Defendant-Appellant.

          Criminal Appeals from the Portage County Court of Common Pleas. Case Nos. 2016 CR 00863 & 2017 CR 00061.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

          Sean C. Buchanan, Slater & Zurz, One Cascade Plaza, Suite 2210, Akron, OH 44308 (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} Appellant, James R. Burns, appeals from the December 18, 2017 judgment entry of the Portage County Court of Common Pleas finding him guilty on two counts of Grand Theft, felonies of the fourth degree, in violation of R.C. 2913.02(A)(3). We affirm in part and reverse and vacate in part the trial court's judgment, and the matter is remanded.

         {¶2} Appellant Burns operates a construction company incorporated and doing business as Brookstone General Contractors by Design, Inc. ("Brookstone"). Initially, Burns was indicted on December 1, 2016, on three counts of Grand Theft and one count of Theft from a Person in a Protected Class. Subsequently, a second indictment was issued by the grand jury on January 31, 2017, for one count of Grand Theft.

         {¶3} Each count of the indictments, tried together in Case No. 16-CR-0863 (4 counts) and Case No. 17-CR-0061 (1 count), relates to contracts for Burns to perform construction services for the alleged victims. However, each of the two counts of which Burns was convicted contains highly different facts and circumstances that are in dispute. For that reason, we present the facts with regard to each count separately.

         Case No. 16-CR-0863, Count 4 ("The Lassiter Count")

         {¶4} Ms. Kathy Lassiter contracted with Burns, d.b.a. Brookstone, in the fall of 2014 to build a house on property she owned in Portage County. This was an all-inclusive home construction agreement; as stated by Ms. Lassiter, the agreement was to "[b]uild us a house that we can move right in to." Ms. Lassiter was referred to Burns through Carter Lumber in Ravenna, Ohio.

         {¶5} The contract required payment to be made in portions as work was done on the home. The original total contract price was for $107, 798.99. The contract was signed on September 5, 2014; however, construction on the house did not begin until March 2015. There was no completion date established in the contract, although Ms. Lassiter claimed that the work was promised to be completed "by Thanksgiving, no later than Christmas."

         {¶6} Various issues arose during the construction of the house based on the topography. Because of these issues, there were disputes between the parties as to the design, constant delays, and workmanship of the project. Among the issues was that Burns hired a subcontractor named Dennis Miller who dug the foundation too deep; drainage issues arose with the adapted crawlspace due to the lower elevation of the land. Burns also had issues receiving permits for the project.

         {¶7} Burns attributed delays in construction to Ms. Lassiter's son, who was supposed to complete electrical work and took several months to do so. Burns also testified as to a major dispute regarding the design of the kitchen, whereby Ms. Lassiter insisted on a substantially more expensive design than called for in the contract for which she refused to pay any extra money. In short, the full payment for constructing the kitchen under the original contract was to be $7, 000.00; however, the kitchen cabinets alone selected by Ms. Lassiter were over $8, 000.00. Ms. Lassiter wrote Burns a check for $8, 000.00 to purchase the kitchen cabinets, but the money was never used for that purpose. Burns claims that the kitchen dispute is what led to his termination as contractor on the project, but Ms. Lassiter denies ever terminating Burns.

         {¶8} Ms. Lassiter also complained about the quality of the work done; however, she did not produce any evidence to substantiate her claim. She testified that she was told evidence of the work quality was not necessary because "this isn't a civil case." Burns produced photographic evidence that contradicted her claims of poor workmanship.

         {¶9} As far as completion, Brookstone successfully set a foundation, erected framing and a roof without gutters, windows, siding, rough plumbing, and shingling. Construction occurred starting in March 2015 and continuing until October 2015.

         {¶10} Burns testified that in October 2015, Ms. Lassiter's boyfriend, Lee Stouffer, confronted Burns about the lack of progress on the project. Soon thereafter, Burns sent two workers to retrieve all the tools and other property left at the site, including property that should not have been taken and was later returned. The parties dispute whether Burns was terminated by Lee Stouffer, on behalf of Ms. Lassiter, before having his tools and other equipment retrieved from the project site following the confrontation. Mr. Stouffer did not testify.

         {¶11} Thereafter, Ms. Lassiter hired a new contractor, and the house was completed in approximately seven months. She also hired an attorney who drafted a demand letter seeking to settle with Burns. Ms. Lassiter was notified two or three days later that Burns had filed for bankruptcy. She testified that she did not participate as a creditor in the bankruptcy because, ". . . it was just a joke . . . And we know that he has pulled this off on several different people . . . We felt it was gonna be a waste of time." Further, her testimony indicated that no civil action was pursued because Ms. Lassiter mistakenly believed that the contract for the project required her to pay Burns' attorney fees for a civil lawsuit.

         {¶12} Ms. Lassiter paid a total of $81, 814.65 out of the $107, 798.99 contract price to Burns for the construction. This included a check for $8, 000.00 written on August 14, 2015, for kitchen cabinets that were never ordered. Burns never used the $8, 000.00 on kitchen cabinets. He claims to have used the money towards completion of the house prior to being terminated. Ms. Lassiter paid a total of $61, 997.29 to the second contractor to have the house completed. She therefore paid a total of $36, 021.95 over the amount contracted to be paid to Burns to build the house.

         Case No. 17-CR-0061, Count 1 ("The Parker Count")

         {¶13} Mrs. Beverly Parker contracted with Burns, d.b.a. Brookstone, in approximately December 2013 to construct an addition, basement with bathroom, deck, and kitchen on property she owned in Copley, Ohio. The kitchen was the main focus of the project: Mrs. Parker had recently retired from her position as a middle school principal in 2013 and was planning to use a lump sum distribution from her 403(b) retirement funds to purchase her "dream kitchen," which would reduce her retirement payments permanently. Mrs. Parker was referred to Burns by a friend, who had his entire home renovated by Burns. The friend invited Mrs. Parker to see the work, and she was very impressed with what Brookstone had done.

         {¶14} The contract required payment to be made in portions as work was done on the project. The original total contract price was for $74, 453.00. There was no completion date established in the contract, although Mrs. Parker testified that she was emphatic that a quick completion of the kitchen was important. This was because her husband had undergone triple bypass surgery and a major concern was being able to strictly control his diet-which would be extremely difficult without a functioning kitchen. Burns offered to construct a temporary kitchen free of charge for the construction period, but Mrs. Parker declined. The parties also agreed that Mr. Parker, following his recovery from surgery, would complete some of the electrical wiring, as he was a licensed electrician.

         {¶15} As far as completion, Brookstone successfully completed all the major exterior modifications needed. The interior renovations were eventually completed to the extent that cabinets were ready to be placed in the kitchen; however, the kitchen cabinets were never installed. While Mrs. Parker paid Burns for the kitchen cabinets directly, they were never even ordered. The series of events concerning the kitchen cabinets was the main focal point of Mrs. Parker's theft claim. Those facts and circumstances are not disputed and are as follows:

         {¶16} Mrs. Parker and Burns met at the Wooster, Ohio Lowe's in January 2014 to place an order for cabinets based on a previous quote of $31, 235.03. After going into the store and planning the order, Burns instructed Mrs. Parker to give him the money for the cabinets because he received a discount as a contractor. The checks written to Burns by Mrs. Parker were made out in amounts just under $10, 000.00 each, totaling the full amount for the cabinets, at Burns' request. Burns explained that he had a common practice of requesting smaller checks-specifically under the $10, 000.00 threshold-so that they would not be subject to a bank hold.

         {¶17} At the time Burns received the money, he claims that the project had just started and that a foundation for the project was not even set. Because he deemed it premature, Burns never placed an order for the kitchen cabinets. Burns deposited the checks in Brookstone's bank account at a bank in Kent, Ohio over the next two days. The bank account in which the checks were deposited was overdrawn and accruing overdraft fees at the time the checks were deposited.

         {¶18} Mrs. Parker initially expected about a six-week delivery time for the cabinets; however, she grew more concerned as the six weeks came and went. Text messages presented at trial showed that Burns assured her several times that the cabinets were ordered, that they were on the way, and that any further delay must be an issue with the manufacturer (KraftMaid). He also claimed that the delay was due to the cabinets being damaged during shipping previously. When Mrs. Parker eventually contacted KraftMaid directly, they indicated that no order had been placed for the style of cabinets Mrs. Parker was claiming had been ordered and that Burns had not placed an order from KraftMaid in over a year. When Mrs. Parker informed Burns of the discussion she had with the manufacturer, he continued to insist that the cabinets were ordered, even encouraging her to place a complaint with the attorney general-which she did in October 2015-despite Burns knowing that he had never placed the cabinet order. Thereafter, Mrs. Parker was forced to reorder the cabinets and purchase them from Lowe's in December 2015. She took out a line of credit to do so.

         {¶19} At trial, Burns stated that the cabinets were not ordered because there would have been nowhere to mount them until the kitchen renovations were complete. He claimed that a need for drywalling, placement of a window, flooring issues, and mechanical installation delayed the completion of the kitchen. Also, Mrs. Parker's husband-who was going to do some of the electrical wiring to save money-had bypass surgery at the time of the construction, and Burns claimed that his recovery delayed the completion of the kitchen.

         {¶20} Finally, Burns claimed that an issue with Mrs. Parker's ability to pay for the completed work arose and he had reason to believe that she was not going to be able to pay for the renovations in full. Essentially, Burns stated that he was holding the funds for the unordered cabinets, which he used to pay other obligations and no longer had, as collateral to ensure payment for the project. Mrs. Parker testified that she was holding off on making further payments and was not going to give Burns any additional funds until the cabinet issue was resolved. Burns testified that he was owed approximately $22, 000.00 when he ceased work on the project. He never used the $31, 235.03 on the kitchen cabinets. Despite his multiple explanations for holding off on ordering the cabinets-including the alleged payment dispute-Burns never separated the funds for the kitchen cabinets into an escrow account or otherwise held the funds independent from all other project funds. He claims to have used the money on completing the project prior to ending construction on the kitchen due to non-payment.


         {¶21} Following Burns' bankruptcy filing in December 2015, Burns' conduct was reported to the Portage County Sheriff's Office in January 2016. As a result, Detective John Lavrich ("Lavrich") began an investigation into Burns in which he identified Ms. Lassiter as a potential victim from Burns' bankruptcy filing. Lavrich contacted her in November 2016 and compiled paperwork and receipts detailing the ongoing construction services provided by Burns before the bankruptcy filing.

         {¶22} On June 30, 2016, criminal investigator Kimberly Kepling ("Kepling") with the Ohio Attorney General's office was assigned to investigate the complaint Mrs. Parker had filed on October 28, 2015 regarding her kitchen cabinets. Kepling conducted a parallel investigation with Lavrich's investigation into the first four alleged victims. With regard to Mrs. Parker, Kepling's investigation revealed the timeline of events discussed above.

         {¶23} Further, in the course of her investigation, Kepling subpoenaed Burns' banking records from December 2013 and January 2014. These records revealed that the bank account for Brookstone had a balance deficit of $891.58 as of December 31, 2013, and was incurring continuous overdraft fees. It had a similar negative balance at the time Burns ...

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