Barteau, Senior Judge.
Matthew E. Reust appeals after a jury trial from his convictions of one count of home improvement fraud, as a Level 5 felony, and one count of theft, as a Level 6 felony. We affirm in part, reverse in part, and remand with instructions.
Reust presents the following issues for our review which we consolidate and restate as the following questions:
I. Does the home improvement fraud statute apply to Reust’s conduct, and, if so, is the evidence sufficient to support his conviction of Level 5 felony home improvement fraud?
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In October 2012, the Ramseys entered into a contract with Tim Howell Construction to build a custom ranch-style home on the land for $472,579.00.
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Sometime in the fall of 2013, instead of adding fill dirt around the foundation in the back of the home, the Ramseys decided to add a patio. … ….
At about the same time as Reust was finishing the patio project, the Ramseys were looking for a landscaper. Reust approached Howell, asking him to recommend him to the Ramseys for that project. Howell did recommend him for the job.
Reust prepared a master plan for the landscaping at the house. After the Ramseys agreed to the plan, Reust provided a quote for the landscaping project on June 3, 2014. The total cost of the project was $22,749.00.
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Reust performed only a small amount of the landscaping work, including installing a fence around the air conditioning unit, installing blocks along the stairs, and, according to Howell, moving some dirt around for about twenty minutes. … ….
Reust did not refund the $20,000.00 he received to complete the landscaping work and did not return to the site to finish the project. … ….
Public Law 158-2013, which became effective on July 1, 2014, made changes to Indiana’s criminal code. … Because Reust’s conduct straddled the effective date of the statutory changes, the State charged him under both the former and amended statutes. Count I alleged that Reust committed home improvement fraud as a Class C felony. … Count III alleged that Reust committed home improvement fraud as a Level 5 felony. …
During Reust’s jury trial, he moved for a judgment on the evidence or, in the alternative, a dismissal of the home improvement fraud charges alleged in Counts I and III. In support of Reust’s argument, he claimed that the home improvement fraud statute did not apply to his landscaping work because the project, as a whole, involved the original construction of a dwelling, which is exempted from the offense. The State responded that the landscaping work was separate from the construction of the home because it involved the modification or alteration of residential property. The trial court denied Reust’s motions but permitted him to raise his arguments to the jury.
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The crux of this issue is whether the home improvement fraud statute applies to Reust’s acts. …
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Indiana Code section 35-43-6-1(1987) provides that the chapter “applies only to residential property, which means real property used in whole or in part as a dwelling by a consumer and includes all fixtures to, structures on, and improvements to the real property.” …
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In pertinent part, a home improvement supplier commits the offense of home improvement fraud when a home improvement supplier enters into a home improvement contract and knowingly promises performance that the home improvement supplier does not intend to perform or knows will not be performed. Ind. Code § 35-43-6-12(a)(3). …
… The State further argues that the plain language of the statute does not require the consumer to be living inside a dwelling at the time the work is being performed for real property to qualify as residential property. The State also asserts that Reust’s landscaping work also qualified as a home improvement because it involves the alteration or modification of residential property. Last, the State claims that the statute’s exemption of original construction does not apply to landscaping, contending that landscaping does not result in the construction of a dwelling.
Reust, on the other hand, argues that the plain language of the statute is applicable to real property used in whole or in part as a dwelling by a consumer. He contends that if the legislature had intended for the statute to include “real property used or to be used in whole or in part as a dwelling”, it would have done so.
We agree with Reust that the plain language of the statutes defining home improvement and dwelling require the consumer to live in the dwelling at the time of the home improvement. This reading of the statutes does not conflict with the statutory exemption for new construction.
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Our research has revealed no cases in Indiana deciding whether landscaping to be installed around the original construction of a home falls under the home improvement fraud statute. Nonetheless, under the wording of our statutes, landscaping qualifies as a home improvement because it involves the alteration, repair, or other modification of residential property, but does not apply to the original construction of a dwelling.
We conclude that Reust’s conduct did not fall under the Home Improvement Fraud Statute. The landscaping project Reust was to perform was ancillary to the construction of the Ramseys’ new home. … Because this is landscaping at a new home construction site, and new home construction is excluded under the terms of the statute as it is not residential property, Reust’s landscaping is not an alteration, repair, or modification of residential property. Therefore, his conduct does not fall within the provisions of the Home Improvement Fraud statutes. Consequently, we reverse Reust’s conviction for Home Improvement Fraud and remand with instructions that the trial court vacate the conviction.
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Affirmed in part, reversed in part and remanded with instructions.
Kirsch, J., and Altice, J., concur