CR28-301 05/17/16

HOME IMPROVEMENT FRAUD – 13 V.S.A. § 2029(b)(1) (Effective May 1, 2015)

The State has charged (Def)_______________ with home improvement fraud, as follows:

[Read the charge.]

Every crime is made up of essential elements. Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt. In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) entered into a contract or agreement, written or oral, for home improvement with the homeowner[s], _______________, in exchange for receipt of $500 or more;

(3) (Def)_______________ knowingly failed to perform the contract or agreement, in whole or in part; and

(4) (owner)_______________ requested performance or a refund of payment made, but (Def)_______________ knowingly failed to either (a) refund the payment, or (b) make and comply with a definite plan for completion of the work that (owner)_______________ had agreed to.

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ entered into a contract or agreement for home improvement with the homeowner[s], _______________, in exchange for receipt of $500 or more. [The contract or agreement may be written or oral.]

[As used here, the term “home improvement” includes the fixing, replacing, remodeling, removing, renovation, alteration, conversion, improvement, demolition, or rehabilitation of or addition to any building or land, or any portion thereof, which is used or designed to be used as a residence or dwelling unit. Home improvement includes the construction, replacement, installation, paving, or improvement of driveways, roofs, and sidewalks, and the limbing, pruning, and removal of trees or shrubbery and other improvements to structures or upon land that is adjacent to a dwelling house.]

Here the State alleges that [he] [she] entered into a contract or agreement with (owner)__________ to _______________, in exchange for $_____ which (owner)__________ paid as a deposit toward a total price of $_____.

The third essential element is that (Def)_______________ knowingly failed to perform the contract or agreement, in whole or in part. The State must have proven that (Def)_______________ acted knowingly, and not inadvertently, or because of mistake, or by accident. You may find that [he] [she] acted knowingly if [he] [she] was aware that [he] [she] was failing to perform the contract or agreement.

The last essential element is that (owner)_______________ requested performance of the contract or a refund of payments made, but (Def)_______________ knowingly failed to either (a) return the payments, or (b) make and comply with a definite plan for completion of the contract or agreement that (owner)_______________ had agreed to. The State must have proven that (Def)_______________ acted knowingly. This means that [he] [she] was aware that [he] [she] was failing to either return the payments, or make and comply with a reasonable written plan for completion of the contract, and that [his] [her] failure to perform was not inadvertent, because of mistake, or by accident.

The third and fourth essential elements require the State to have proven that (Def)_______________ acted knowingly. The mental state with which a person does an act may be shown by the way in which the person expresses it to others, or by [his] [her] conduct. In determining (Def)_______________’s [mental state], you should consider all of the surrounding facts and circumstances established by the evidence.

If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must find (Def)_______________ not guilty. However, if the State has proven all of the essential elements beyond a reasonable doubt, you must return a verdict of guilty.