CR28-306                   05/17/16

 

HOME IMPROVEMENT FRAUD – 13 V.S.A. § 2029(b)(1) (Effective until April 30, 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)        knowingly entered into a contract or agreement, written or oral, for home improvement with the homeowner[s], _______________;

(3)        (Def)_______________ promised to perform services, under terms of the contract, in exchange for receipt of $500 or more; and

(4)        at the time, [he] [she] [did not intend to perform those services]

[knew that those services would not be performed].

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

            The second essential element is that (Def)_______________ knowingly entered into a contract or agreement for home improvement with the homeowner[s], _______________.  [The contract or agreement may be written or oral.]  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 entering into a contract or agreement for home improvement.

            [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.]

            The third essential element is that (Def)_______________ promised to perform services, under terms of the contract, in exchange for receipt of $500 or more.  Here the State alleges that [he] [she] promised to _______________, in exchange for $_____ which (owner)__________ paid as a deposit toward a total price of $_____.

            The last essential element is that, when [he] [she] entered into the contract for home improvement, (Def)_______________

            [did not intend to perform those services.  This means that [he] [she] acted purposely, and that [his] [her] failure to perform was not inadvertent, because of mistake, or by accident.]

            [knew that those services would not be performed.  This means that [he] [she] was aware that [he] [she] would not be performing the services, and that [his] [her] failure to perform was not inadvertent, because of mistake, or by accident.]

            [With regard to this last essential element, you may, but need not, infer that (Def)_______________ knew that the services would not be performed, if [he] [she] failed to perform the services [he] [she] had promised under the contract or agreement, and (owner)_______________ requested either performance of the contract or a refund of payments made, but (Def)_______________ failed to either (a) return the payments or deliver the materials or make and comply with a reasonable written repayment plan for the return of the payments, or (b) make and comply with a reasonable written plan for completion of the contract or agreement.  However, you are not required to draw this inference, or any other inference.]

            The intent or purpose 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 [intent] [mental state], you should consider all of the surrounding facts and circumstances established by the evidence.

            All of the elements of the offense must have been present at the same time.  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.