Randy L. Madewell v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. Mar 04 2014, 9:52 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL J. KYLE GREGORY F. ZOELLER
Baldwin Adams & Kamish Attorney General of Indiana
Franklin, Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RANDY L. MADEWELL, )
)
Appellant-Defendant, )
)
vs. ) No. 41A05-1305-CR-254
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Lance D. Hamner, Judge
Cause No. 41D03-1201-FD-11
March 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
After hailstorms hit central Indiana in May 2011, Randy L. Madewell moved from
Texas to Indiana and started Brown County Roofing out of a friend’s home, claiming to be
“locally owned and operated.” Although Madewell secured contracts and money from six
homeowners, he never replaced their roofs as promised or returned their money. A jury
found him guilty of six counts of home-improvement fraud—three as Class D felonies and
three as Class B misdemeanors. The trial court imposed consecutive sentences on the Class
D felonies totaling six years.
Madewell contends that the evidence is insufficient to prove that when he entered
into the contracts with the homeowners, he did not intend to replace their roofs or knew
that he would not replace their roofs. He also contends that the trial court erred in imposing
consecutive sentences on the Class D felonies because his crimes arose out of an episode
of criminal conduct. We find the evidence sufficient to prove that Madewell came to
Indiana to make a fast profit and that he did not intend to replace or knew that he would
not replace the homeowners’ roofs when he entered into the contracts. We also find that
the crimes did not arise out of an episode of criminal conduct because they involved
different homeowners on different dates. We therefore affirm the trial court.
Facts and Procedural History
Indiana had several hailstorms in May 2011. Madewell, a contractor by trade, lived
in Texas, but he knew Johnny Mullens, who lived in Brown County, Indiana. Madewell
contacted Mullens and proposed that they “do the roofing thing.” Tr. p. 12. Mullens told
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Madewell that he would do whatever he could to help, but he was not going to quit his full-
time job as a gas hauler for Circle K.
During the first week in June 2011, Madewell arrived at Mullens’ house and moved
in with his family. Madewell brought his truck as well as some office and roofing
equipment. He did not bring a roofing crew with him. Madewell maintained his Texas
driver’s license, registration, and citizenship.
Within a month, Madewell created Brown County Roofing. Initially, the company
was set up as a sole proprietorship. Madewell used Mullens’ residential address and
personal cell phone on his advertising materials. Id. at 15. He also stated in the materials
that it was “locally owned and operated.” Id.
Madewell hired Mullens as a salesperson to sign up as many homeowners as he
could to use Brown County Roofing to replace their hail-damaged roofs. Mullens worked
part-time for Madewell from June until the end of August 2011. During this time, Mullens
signed up approximately eight to ten homeowners. Id. at 27-28. However, during this
same time, the company replaced only three roofs, even though it takes only about two
days to replace a roof. Id. at 18-19. Mullens occasionally asked Madewell why he had not
lined up subcontractors to start working on the roofs since he had already secured signed
contracts and money from the homeowners. Id. at 20-21. Madewell, however, always
gave Mullens different excuses. Id. When the business relationship between the two men
soured, Madewell moved out of Mullens’ house in August 2011.
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Also in August 2011, Madewell obtained business insurance, organized Brown
County Roofing as a Limited Liability Company (LLC), and obtained an Employer
Identification Number.
The six homeowners at issue in this case signed contracts with Madewell but never
had their roofs replaced or their money refunded.
On June 30, 2011, Madewell and Mullens went to the home of Diana Boylls, who
was sixty-six years old at the time of trial in 2013. Madewell told Boylls about possible
hail damage and instructed her to contact her insurance company. Boylls signed a contract
with Brown County Roofing that day. State’s Ex. 6. The following week, an insurance
adjuster, Madewell, and Mullens inspected Boylls’ roof. On July 11, Boylls wrote
Madewell—not Brown County Roofing—a check for $4000 from her personal funds
because she had not received any insurance proceeds. After receiving her insurance
proceeds, on July 19, Boylls again wrote Madewell—not Brown County Roofing—a
second check for $1907. Madewell never returned to Boylls’ home. Boylls eventually had
her roof replaced in the summer of 2012 by another contractor.
Madewell inspected Mary Ruhana’s roof on July 11, 2011. Ruhana’s husband
signed a contract that same day. State’s Ex. 9. The following day, Mullens and an adjuster
from State Farm inspected Ruhana’s roof. Ruhana wrote Brown County Roofing a check
for $7608.01 on August 4. Madewell met with the State Farm adjuster at Ruhana’s house
again in October. Supplies were never delivered to Ruhana’s house, and no work was
completed. Ruhana eventually had her roof replaced in November 2011 by another
contractor.
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Madewell met with sixty-one-year-old Mike Rogina in July 2011 about his roof
damage, and his wife signed a contract on July 11. State’s Ex. 14. Rogina wrote a check
to Brown County Roofing for $7535.56 on July 29. Madewell never performed any work
for Rogina, and in October 2011, Rogina contacted the police.
Kevin Dunlap received a Brown County Roofing flyer in his mailbox and called
them. On July 22, 2011, Mullens went to Dunlap’s home to assess his hail damage.
Dunlap’s wife signed a contract that day. State’s Ex. 3. When Dunlap’s insurance
company approved the work, Madewell went to Dunlap’s home around August 30. Dunlap
made a down payment of $5328. Madewell told Dunlap that he would start work in about
three weeks, but he never did. Dunlap contacted the police in November 2011. Dunlap
had his roof replaced by another contractor in early 2013.
Pauline Beuke’s roof was also damaged by hail. Beuke was seventy-nine-years old
at the time of trial in 2013. Like Dunlap, Beuke called Brown County Roofing after
receiving a flyer. On July 22, 2011, Mullens inspected her roof. Beuke signed a contract
that day. State’s Ex. 20. An insurance adjuster came over later to confirm the damage.
On September 20, Beuke met with Madewell and wrote Brown County Roofing a check
for $7000. Madewell never performed any work for Beuke, and another contractor
replaced Beuke’s roof in December 2011.
Finally, Mullens went to the home of John Boyce on August 2, 2011, and inspected
his roof. Boyce signed a contract that day. State’s Ex. 11. Madewell later met Boyce’s
insurance adjuster at the house. Boyce wrote a check to Brown County Roofing for
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$4487.59 on August 10. Madewell never performed any work for Boyce. Boyce had his
roof replaced by another contractor in October or November 2011.
When Boylls wrote her first check to Madewell on July 11, 2011, Madewell had not
yet opened a bank account for his company. So, he went to Boylls’ bank and cashed her
$4000 check. Between July 11 and September 26, 2011, Madewell collected and deposited
nearly $110,000 through Brown County Roofing. From that amount, Madewell purchased
materials for a few projects, but none for any of the six homeowners in this case. Madewell
maintained multiple Brown County Roofing bank accounts, including a checking account
as a sole proprietorship (the “dba account”), which was established on July 19, 2011; a
checking account after Madewell organized his company as an LLC (the “LLC account”),
which was established on August 13; and personal accounts with his bank that were
separate and distinct from his Brown County Roofing business accounts. The dba account
for August 2011 shows a $673.46 purchase at Bass Pro Shop for fishing poles. Madewell
also used the account that month to make purchases at Ralph Lauren (twice), Elder
Beerman, Columbia, Jockey, and several leather stores for motorcycle accessories.
Madewell made similar purchases using the dba account in September 2011 at
Ralph Lauren, Columbia, Macy’s, Moonshine Leather, Motorcycle Center (twice), and
Target. He also bought a boat, an iPod for his son, and a television for his camper.
Madewell also spent $3064 on a motorcycle for his son that he claimed was to pay back a
loan that was used to start up the company.
In October 2011, after Madewell had returned to Texas, the LLC account balance
was over $9000. But by the end of the month, the balance had decreased to $500.
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Madewell made 104 purchases in Texas, and none of them were related to repairing roofs
in Indiana.
In January 2012, the State charged Madewell with six counts of home-improvement
fraud. Three of the counts were charged as Class D felonies because the consumers were
at least sixty years old (Count 1: Rogina, Count 3: Boylls, and Count 5: Beuke), and the
other three counts were charged as Class B misdemeanors (Count 2: Boyce, Count 4:
Ruhana, and Count 6: Dunlap). Appellant’s App. p. 14-19. A three-day jury trial was held,
and Madewell was found guilty of all six counts. The trial court sentenced Madewell to
730 days (2 years) for each of the Class D felonies (Counts 1, 3, and 5) and 180 days for
each of the Class B misdemeanors (Counts 2, 4, and 6). The court ordered Counts 1, 3,
and 5 to run consecutive to each other and Counts 2, 4, and 6 to run concurrent to each
other and to the other counts, for an aggregate sentence of 2190 days (6 years). The court
also ordered Madewell to pay restitution to each of the homeowners.
Madewell now appeals.
Discussion and Decision
Madewell contends that the evidence is insufficient to support his convictions and
that the trial court erred in ordering his sentences for the Class D felonies (Counts 1, 3, and
5) to be served consecutively.
I. Sufficiency of the Evidence
Madewell contends that the evidence is insufficient to support his six convictions
for home-improvement fraud. When reviewing the sufficiency of the evidence, we neither
reweigh the evidence nor determine the credibility of witnesses. Bailey v. State, 979
7
N.E.2d 133, 135 (Ind. 2012). We look solely to the evidence most favorable to the verdict
together with all reasonable inferences to be drawn therefrom. Id. A conviction will be
affirmed if the probative evidence and reasonable inferences to be drawn from the evidence
could have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.In order to convict Madewell of Class B misdemeanor home-improvement fraud,
the State had to prove that Madewell entered into a home-improvement contract and
knowingly promised performance, that is, a new roof, that he did not intend to perform or
knew would not be performed. Ind. Code § 35-43-6-12(a)(3); Appellant’s App. p. 15, 17,
19. To establish that it was a Class D felony, the State had to prove that the consumers
were at least sixty years old and the home-improvement contract price was $10,000 or less.
Ind. Code § 35-43-6-13(b)(2); Appellant’s App. p. 14, 16, and 18. The legislature’s goal
in enacting Section 35-43-6-12 was to protect people, and particularly people at least sixty
years of age, from being taken advantage of by people performing or offering to perform
work on their homes. Golladay v. State, 875 N.E.2d 389, 393 (Ind. Ct. App. 2007),
clarified by 880 N.E.2d 336 (Ind. Ct. App. 2008).
Madewell’s only argument on appeal is that “the State presented no evidence of
Madewell’s intent during the period of July through September when he actually entered
into the contracts.” Appellant’s Br. p. 7. Knowledge and intent are mental states of the
actor; therefore, the trier of fact must resort to reasonable inferences based on an
examination of the surrounding circumstances to reasonably infer their existence. Slone v.
State, 912 N.E.2d 875, 880 (Ind. Ct. App. 2009), trans. denied.
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We find that the evidence is sufficient to prove that when Madewell entered into the
home-improvement contracts with each of the six homeowners, Madewell either did not
intend to replace their roofs or knew that he would not replace their roofs. Madewell
moved from Texas to Indiana and created Brown County Roofing. Madewell advertised
as a “locally owned and operated” business but used Mullens’ address and phone number.
Madewell, however, maintained his Texas driver’s license, registration, and citizenship.
He asked that the first payment from Boylls be made out to him—not Brown County
Roofing—and cashed the check before opening a business account. At trial, Madewell was
unable to account for how that first money was used.
Madewell asked Mullens to line up as many homeowners as he could, but without
any intention of finding subcontractors to perform the actual work. Despite contracting
with at least nine homeowners, only three roofs were installed between June and September
2011. Curiously, one of the roofs Madewell completed, and in a timely manner, was for
an investigator for the Indiana Secretary of State’s office. Tr. p. 333, 348. Madewell
received over $100,000 between June and September 2011, but from that amount he paid
for only a few roofs to be installed. By the end of October, nearly all of the money was
gone. Madewell spent a substantial amount of money on clothes, leather accessories,
fishing equipment, a boat, a motorcycle and accessories, a television, an iPod, and other
personal items.
From this evidence, the jury could have reasonably inferred that Madewell came to
Indiana to make a fast profit after the May 2011 hailstorms and took advantage of Mullens
and his hospitality by setting up shop in his home and using his address in order to proclaim
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that his business was “locally owned and operated.” Although Madewell collected
$100,000 between June and September 2011, he completed only three roofs and spent no
money toward the roofs of the six homeowner victims here. Instead, he spent money on
personal items. The evidence is sufficient to prove that when Madewell entered into the
home-improvement contracts with each of the six homeowners, Madewell either did not
intend to replace their roofs or knew that he would not replace their roofs.1 Madewell’s
arguments that in August 2011 he obtained business insurance, organized Brown County
Roofing as an LLC, and obtained an Employer Identification Number—notably all of
which occurred approximately two months after he started his company—are merely
requests for us to reweigh the evidence, which we will not do. We therefore affirm
Madewell’s six convictions for home-improvement fraud.
II. Consecutive Sentence
Madewell contends that the trial court erred in ordering consecutive sentences for
his Class D felonies (Counts 1, 3, and 5) totaling six years. Specifically, he argues that the
trial court’s imposition of consecutive sentences violates Indiana Code section 35-50-1-
2(c), which provides in relevant part:
[E]xcept for crimes of violence, the total of the consecutive terms of
imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and
IC 35-50-2-10, to which the defendant is sentenced for felony convictions
arising out of an episode of criminal conduct shall not exceed the advisory
1
Madewell notes that the dates included in the charging informations range from October 9 to
November 14, 2011, which is after Madewell left Indiana. See Appellant’s App. p. 14-19 (charging
informations). However, Madewell does not frame this issue as a fatal variance. Moreover, the law is well
settled that where time is not an element or “of the essence of the offense,” the State need not prove the
precise date alleged in the charging information but may prove that the crime occurred at any time within
the statutory period of limitations. Sangsland v. State, 715 N.E.2d 875, 878 (Ind. Ct. App. 1999), trans.
denied. Here, because time is not an element or “of the essence” of home-improvement fraud, the State
was not limited to proving that the offenses occurred between October 9 and November 14.
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sentence for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
Madewell asserts that his crimes were part of a single episode of criminal conduct, and, as
a result, the trial court erred in imposing consecutive sentences exceeding four years, which
is the advisory sentence for a Class C felony.
An “episode of criminal conduct” means “offenses or a connected series of offenses
that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). In
determining whether offenses are sufficiently related, emphasis has been placed on the
timing of the offenses and whether they were committed simultaneously or
contemporaneously. Gootee v. State, 942 N.E.2d 111, 114 (Ind. Ct. App. 2011), trans.
denied. Additionally, we may consider “whether the conduct is so closely related in time,
place, and circumstance that a complete account of one charge cannot be related without
referring to details of the other charge,” though this consideration is not dispositive. Id.;
see also Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006).
Madewell entered into home-improvement contracts with six different
homeowners—three of them at least sixty years old—for different amounts of money on
multiple dates. Although his crimes were similar—entering into contracts to replace the
homeowners’ roofs, taking their money before performing any work, and then not
replacing their roofs or returning their money—each situation was unique. Madewell
maintained just enough phone contact or occasionally came to their homes to make it seem
like his company would eventually replace their roofs. Because Madewell committed his
crimes at different places, with different people, and on different days, his crimes are not
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an episode of criminal conduct.2 See Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002)
(finding that the forgeries—which consisted of defendant stealing checks from victim and
then depositing them at different banks in Marion County over the course of one
afternoon—were not an episode of criminal conduct because they occurred “at a separate
time, separate place and for a separate amount money from the other.”). Accordingly, the
trial court did not err in imposing consecutive sentences pursuant to Section 35-50-1-2(c).
Affirmed.
RILEY, J., and MAY, J., concur.
2
Similar to his sufficiency argument, see supra note 1, Madewell’s actual argument on this issue
is that the crimes constitute an episode of criminal conduct because “the State did not charge Madewell
with committing the crimes when the contracts were actually made” and instead relied on only one fact—
depletion of the checking accounts—to prove home-improvement fraud. Appellant’s Br. p. 10. But as we
already explained, because time is not of the essence for home-improvement fraud, the State was not limited
to the dates in the charging information and could rely on the surrounding circumstances.
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