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Massachusetts Appeals Court Reverses Larceny Conviction for Contractor Who Got Paid but Didn’t Do the Work

The Massachusetts Appeals Court today reversed the conviction of a man who was hired by a Marshfield couple to perform home improvement work but didn’t finish the job after receiving payment.  The name of the case is Commonwealth v. Long

The victims hired the defendant to perform several jobs at their house, including: installing new windows and window sills; installing a new sliding door; installing crown moldings; and performing other minor tasks such as completing trim work.  The defendant told the victims the entire project would cost around $32,000 and they gave him a deposit of $11,800 to start the project.  The defendant’s first job was to purchase and install the windows.  He cashed the deposit check and obtained a quote from Home Depot for the windows, but apparently never made the purchase.  Instead, he bought other items, including drop cloths, trays, caulking, casings, a nail gun, a claw hammer, portable work lights, a steel door, and sponges.  On the day he cashed the victims’ check, the defendant and an assistant installed crown moldings in their house.  The victims were not satisfied with the work and left the defendant a note the following day.  The defendant did one more day of work at the victims’ home before quitting altogether.  The victims were unable to reach the defendant by phone.  A week later, the defendant sent a final invoice to the victims, claiming they owed him a little more than $1,000 in addition to the $11,800 already paid for the work he had already performed, the supplies he had already bought, the rental of a dumpster, and a 10% “cancellation fee.”  The defendant testified at trial that he had bought the windows but did not deliver them to the victims.  A Plymouth District Court jury convicted the defendant of larceny by false pretenses.

The Appeals Court said in order to convict the defendant, the Commonwealth needed to prove: (1) he made a false statement of fact; (2) he knew the statement was false at the time he made it; (3) he intended for the victims to rely on the false statement; and (4) the victims did rely on the false statement and parted with their property.  While it is clear the defendant did not follow through on his promise to install windows in the victims’ home, the Appeals Court focused on whether the Commonwealth had proven the defendant intended to not perform the work at the time he made the false statement.  The Court concluded the prosecution had failed to prove the defendant specifically intended to defraud the victims at the time he agreed to install the windows at their house.  The Court said in this case, “the defendant’s acts merely show nonperformance of a contract, which is not a crime.”  The Court said the facts in this case justified a civil lawsuit instead of a criminal prosecution.

The Appeals Court’s reasoning in this case is hard to follow.  If the contractor here cannot be criminally prosecuted for larceny, it’s difficult to imagine a fact pattern in which a contractor could be found guilty.  What better evidence of intent to defraud exists than the contractor’s refusal to do the job after receiving payment?  It will be interesting to see if the Supreme Judicial Court reviews this case.

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