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State v. Pinner

Court of Appeals of Louisiana, Fifth Circuit

October 23, 2019

STATE OF LOUISIANA
v.
MICHAEL PINNER

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-6437, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Anne M. Wallis Zachary P. Popovich Jennifer C. Voss

          COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL PINNER Holli A. Herrle-Castillo

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         Appellant appeals his conviction for one count of residential contractor fraud. For the reasons that follow, we affirm defendant's conviction and sentence and further remand for the correction of errors in the district court record.

         PROCEDURAL HISTORY

         On October 21, 2016, defendant/appellant, Michael Pinner, was charged by the Jefferson Parish District Attorney's Office with one count of residential contractor fraud, a violation of La. R.S. 14:202.1(A)(1).[1] Defendant pled not guilty and proceeded to a jury trial on January 22. 2019, after which he was unanimously found guilty as charged. The trial court thereafter denied defendant's motion for new trial and motion for post-verdict judgment of acquittal on February 4, 2019. On that same date, the trial court sentenced defendant to three years of active probation and ordered him to pay $6, 500.00 in restitution. Defendant did not object to his sentence. This timely appeal follows.

         FACTS

         The victims in this case, Lisa and Anthony Turley, testified at trial that in November of 2015 they purchased a home in Metairie with the intention to complete a renovation prior to occupying the property. Because Mrs. Turley had worked with defendant on a prior renovation project, she contacted and hired him to replace the existing windows in the home. On December 5, 2015, defendant went to the Turleys' house and took measurements of all windows, informing the couple that he would follow up by providing cost estimates for vinyl and aluminum frames. After making their selection of frame material on December 29, 2015, the Turleys signed a written contract with defendant for the purchase of the windows as well as the cost of installation. At that time, the Turleys tendered an initial payment to defendant of $3, 500.00, and defendant told the Turleys that the windows would be available for installation in three to four weeks.

         On January 20, 2016, Mrs. Turley received a text message from defendant informing her that their final payment was due, and that he could begin installing the windows during the following week. On January 29, 2016, Mrs. Turley tendered a check to defendant in the amount of $3, 000.00. In the weeks that followed, defendant did not immediately reply to Mrs. Turley's text messages which inquired about the timeline for installment of the windows. Defendant finally replied to Mrs. Turley on February 18, 2016, stating that window shipment had not arrived and therefore he did not have an estimated installation date. Mrs. Turley responded that defendant previously claimed that the windows had already come in, which was why the final payment became due. Mrs. Turley testified that defendant did not reply to her question about the delivery date of the windows, nor did he send any additional texts after February 25, 2016. She further testified that defendant never delivered the windows or refunded her money.

         Mr. Turley testified at trial that in March of 2016, he directly contacted the window manufacturer, Don Young, because defendant failed to communicate about the status of the windows. It was then that the Turleys discovered that the window order had not yet been placed. Mr. Turley attempted to contact defendant to request the return of their money to no avail. Upon the advice of the Turleys' attorney, on March 14 and 28, 2016, defendant was mailed formal demand letters requesting a refund. The March 28, 2016 certified letter was received by defendant on April 2, 2016, as evidenced by defendant's signature. On April 4, 2016, Mr. Turley reached out to Dean Palazzalo, the owner of Cool-Vue Aluminum, who was the local window distributor that defendant used. Mr. Turley testified that he called Mr. Palazzalo to inform him of the situation involving defendant and to advise him that he did not intend on doing business with defendant. Mr. Turley recalled that on April 12, 2016, defendant sent him a text message saying, "[w]e need to get together to resolve this matter. I'm looking for an appointment," to which Mr. Turley replied, "[y]ou may submit cashier's check/funds to my attorney." Thereafter, sometime in May of 2016, Mr. Turley received a voicemail from a man named "Keith Williams," whom Mr. Turley did not know, stating, "I've got some windows for you." Mr. Turley did not return the phone call. Consistent with the testimony of Mrs. Turley, Mr. Turley confirmed that, at the time of trial, they had not received a full refund of their money from defendant, and the new windows were never installed by defendant.

         Deputy Shane Rivolo of the Jefferson Parish Sheriff's Office testified that, in April of 2016, he was assigned to investigate a case of contractor fraud involving defendant after the Turleys filed a complaint. Deputy Rivolo detailed the findings of his investigation, which closely tracked the trial testimony of the Turleys. Deputy Rivolo stated that there was no evidence that the Turleys had extended the completion date of their contract past forty-five days. Deputy Rivolo was also provided with a signed copy of a receipt from a certified demand letter dated April 2, 2016, which was served on defendant by the Turleys' attorney requesting return of their money. Having failed to perform the work or return the Turleys' money, a warrant was issued for defendant's arrest for contractor fraud.

         Defendant called two witnesses at trial. Dean Palazzalo testified that he had known defendant for 22 years from working with defendant in the window business. He recalled that defendant placed a window order for the Turleys' home on April 4, 2016. Prior to that date, however, in February or March of 2016, Palazzalo received a phone call from Mr. Turley, who indicated that he was frustrated with defendant and did not want defendant to perform the work for him. Palazzalo stated that Mr. Turley advised him not to order the windows and that he had called the Don Young manufacturing company and attempted to stop the order. At the time of their conversation, defendant had not yet paid Palazzalo a deposit for the windows, and Palazzalo had not yet placed the window order. Palazzalo stated that despite his conversation with ...


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