State v. Amidon, 2011 VT 126 (mem.).
Today’s case is a minor footnote due to an issue of timing.
Defendant was charged with two counts of home improvement fraud, one count of false pretenses, and one count of grand larceny. At trial, Defendant was convicted by a jury on one count of home improvement fraud. He was found not guilty on the other count of home improvement fraud and grand larceny. The charge of false pretenses was dismissed by the State after the jury deadlocked without reaching a verdict.
Defendant now batting three for four appealed the sole conviction. While the appeal was pending, the SCOV issued a decision in State v. Rounds, 2011 VT 39, which we summarized here.
In Rounds, the SCOV reversed a home improvement fraud conviction because of a faulty jury instruction that allowed the jury to convict without a showing by the state that the homeowner actually asked Defendant to complete the construction project. Lo and behold, the same instruction was given to the Defendant in today’s case. State and Defendant agree that the facts of the present case are identical to Rounds, and the SCOV vacates the conviction and remands for a new trial.
Whether Defendant’s luck will hold out with either the State declining to retry him or a defendant’s verdict remains to be seen. Whether or not it does, we would commend Boethius’ Consolation of Philosophy to either side as a balm to the caprice of Fortuna and her wheel.