{
  "id": 3832796,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. HOFER, Defendant-Appellant",
  "name_abbreviation": "People v. Hofer",
  "decision_date": "2004-02-27",
  "docket_number": "No. 3-02-0758",
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  "provenance": {
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. HOFER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE SCHMIDT\ndelivered the opinion of the court:\nFollowing 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\u2019 reporting probation and 60 days\u2019 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\u2019s argument is not waived and affirm.\nBACKGROUND\nThe complainant, Victor Bruce Outright, testified that he is a teacher and he fives on a farm near the town of Grant Park. In March 1998, he contacted two carpenters about constructing \u201ca pole building, a farm building\u201d on his properly. 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 Outright and offered to construct the building. The defendant was doing business as Prairie State Post Frame.\nOn March 4, 1998, the defendant went to Cutright\u2019s residence and discussed the project. The two men executed a written agreement for construction of the \u201cpole barn.\u201d The defendant testified that the building was to be located \u201ctoward the back half of [Cutright\u2019s property].\u201d The defendant stated that in the \u201cmain area where [Outright] lives, there was a \u2014 like a block type building. And it was to be to the west of that.\u201d\nUnder the agreement, Outright 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. Outright wrote a check to the defendant for $4,000 on March 4, 1998, which the defendant cashed on March 5, 1998.\nThe defendant told Outright 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\u2019s trusses.\nOutright testified that on March 14, 1998, the defendant came to Cutright\u2019s \u201cresidence,\u201d where the two men dismantled a lean-to structure attached to a barn. Outright 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 Outright that increasing the building\u2019s size was \u201cnot a problem.\u201d The defendant stated that he would revise the proposal and get back to Outright about the construction project.\nOutright had no contact with the defendant until late April or early May when Outright \u201cran into\u201d the defendant at a local fish fry. Outright asked the defendant about ordering the trusses, the blueprints, the building permit, and the insurance certification. The defendant assured Outright that he was \u201cworking on it\u201d and that he would \u201cdrop it by\u201d for Outright. Outright testified that the defendant did not perform any of his obligations under the agreement. Outright 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.\nThe defendant testified that he submitted a material list to Menards on May 12, 1998. However, Outright stated that he contacted an employee of Menards, who said Menards had not received any order for materials under the name Outright, Hofer, or Prairie State Post Frame.\nAn 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. Outright submitted that the first time he had learned that the blueprints existed was on the morning of the trial.\nOutright testified that on June 22, 1998, he contacted the sheriffs department about the defendant\u2019s failure to perform on the contract and failure to communicate with him. Eventually, Outright contacted the State\u2019s Attorney\u2019s office, the Attorney General\u2019s office, and his private attorney about the matter.\nOn July 8, 1998, Outright\u2019s attorney sent a letter to the defendant demanding repayment of the $4,000 down payment. In the letter, Outright\u2019s attorney stated that the defendant was not to do any work on the building project.\nOn 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 guilty of the lesser included offense of home repair fraud.\nThe court found the defendant guilty of the lesser included offense. In so ruling, the judge stated that she found Outright and Larson to be credible witnesses. She said that she found the defendant not to be credible because he had lied about his two meetings with Larson in early June.\nThe defendant filed a motion to reconsider the court\u2019s finding of guilt. In this motion, the defendant argued that the State failed to prove beyond a reasonable doubt that he did not intend to perform on the contract. The motion was denied.\nThe parties agreed that the defendant would pay Outright $4,262.50 in restitution. The defendant then was sentenced and he appealed.\nANALYSIS\nThe defendant contends that the State failed to prove the elements of the offense beyond a reasonable doubt. He submits that the breach of his promise to construct a pole barn did not establish a violation of the Home Repair Fraud Act (Act) (815 ILCS 515/1 et seq. (West 1998)).\nThe State argues that the defendant\u2019s issue is waived on appeal because the defendant failed to raise it in the trial court.\nI. Waiver\nA defendant may raise for the first time on appeal the issue that the State failed to prove the elements of the crime beyond a reasonable doubt. People v. King, 151 Ill. App. 3d 644, 503 N.E.2d 384 (1987).\nIn this case, the defendant is raising a reasonable doubt argument for the first time on appeal. Under King, this issue is not waived.\nII. Reasonable Doubt\nThe defendant contends that the proposed construction of a pole barn on Outright\u2019s property did not fall within the ambit of the Act\u2019s definition of a \u201chome repair.\u201d\nWhen analyzing the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Barham, 337 Ill. App. 3d 1121, 788 N.E.2d 297 (2003).\nUnder the Act:\n\u201c(a) A person commits the offense of home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:\n*** promises performance which he does not intend to perform or knows will not be performed.\u201d 815 ILCS 515/3(a)(l) (West 1998).\nThe Act contains the following definitions that are relevant to our inquiry:\n\u201c(a) \u2018Home Repair\u2019 means the fixing, replacing, altering, converting, modernizing, improving of or the making of an addition to any real property primarily designed or used as a residence.\n(1) Home repair shall include the construction, installation, replacement or improvement of driveways, swimming pools, porches, kitchens, chimneys, chimney liners, garages, fences, fallout shelters, central air conditioning, central heating, boilers, furnaces, hot water heaters, electrical wiring, sewers, plumbing fixtures, storm doors, storm windows, awnings and other improvements to structures within the residence or upon the land adjacent thereto.\n(c) \u2018Residence\u2019 means a single or multiple family dwelling, including but not limited to a single family home, apartment building, condominium, duplex or townhouse which is used or intended to be used by its occupants as their dwelling place.\u201d (Emphasis added.) 815 ILCS 515/2(a)(l), (c) (West 1998).\nThis court\u2019s research has not revealed any Illinois case interpreting the provisions of the Act at issue in this case. Therefore, we are called upon to interpret portions of the Act as a matter of first impression.\nThe cardinal rule of statutory construction is to determine and give effect to the intent of the legislature. People v. Hamalainen, 341 Ill. App. 3d 205, 792 N.E,2d 511 (2003). The best indication of the legislature\u2019s intent is the language of the statute. Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d 511. Such language should be given its plain or ordinary and popularly understood meaning. Hamalainen, 341 Ill. App. 3d 205, 792 N.E.2d 511.\nWhen a statute provides a list that is not exclusive, that is, when it uses the phrase \u201cshall include,\u201d the Illinois Supreme Court has stated that \u201cestablished rules of statutory construction inform us that *** the class of unarticulated things will be interpreted as those that are similar to the named things.\u201d People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 48, 779 N.E.2d 875, 882 (2002).\nIn the present case, the record indicates that the defendant entered into a written agreement with Cutright to build a structure that was referred to variously as \u201ca pole building,\u201d \u201ca pole barn,\u201d and \u201ca farm building.\u201d Although such a structure is not explicitly listed in section 2(a)(1) of the Act, this section contains a nonexclusive list. Under Birkett, the type of building proposed was similar to the types of structures named in the list.\nOne can hardly drive through rural Illinois without noticing the burgeoning number of \u201cpole barns\u201d or \u201cMorton buildings\u201d in the yards of rural landowners. These buildings are to the country dweller or gentleman farmer what the garage is to the suburbanite. However, no self-respecting \u201cland baron\u201d would even think about calling this building where he parks his pickup truck, SUV( garden tractors, et cetera, a \u201cgarage.\u201d Nonetheless, we find that the construction of a pole barn behind plaintiffs house is sufficiently similar to, if not identical to, the construction of a garage, and therefore falls within the statutory definition of home repair.\nFurther evidence also supported the conclusion that the proposed building at issue fell within the Act\u2019s definition of a \u201chome repair.\u201d The parties referred to Cutright\u2019s property throughout the trial as his \u201cresidence.\u201d The defendant testified that the proposed building was to be constructed within the \u201cmain area\u201d where Cutright lives. The agreement was for the \u201cconstruction\u201d of a building similar to structures listed in section 2(a)(1), \u201cupon the land adjacent\u201d to Cutright\u2019s residence.\nA rational trier of fact could have found beyond a reasonable doubt that the defendant knowingly entered into an agreement with Cutright for a home repair, and knowingly promised performance which he did not intend to perform or knew would not be performed. Taking the evidence in the fight most favorable to the prosecution, a rational trier of fact could have found that the State proved beyond a reasonable doubt that the defendant committed home repair fraud.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the Kankakee County circuit court.\nAffirmed.\nMcDADE and SLATER, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE SCHMIDT"
      }
    ],
    "attorneys": [
      "Santiago A. Durango, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Edward D. Smith, State\u2019s Attorney, of Kankakee (Lawrence M. Bauer, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Deidre Donnellan, of Plainfield, for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. HOFER, Defendant-Appellant.\nThird District\nNo. 3 \u2014 02\u20140758\nOpinion filed February 27, 2004.\nSantiago A. Durango, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward D. Smith, State\u2019s Attorney, of Kankakee (Lawrence M. Bauer, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Deidre Donnellan, of Plainfield, for the People."
  },
  "file_name": "1095-01",
  "first_page_order": 1113,
  "last_page_order": 1119
}