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Blue Grass fraud suspect 'not guilty'
Arizona man stands trial for taking $8,000 under false pretenses
BY JAMES JACENICH • STAFF WRITER
MONTEREY — In Highland Circuit Court last Friday, Judge Humes Franklin Jr. found Hamilton Tyler, 36, of Phoenix, Ariz., not guilty of one felony charge of obtaining money under false pretenses. Tyler had been charged with obtaining $8,000 from Roy Kimble Jr. of Blue Grass with the intent to defraud. Tyler was found guilty of failure to appear at his trial set for April 25, fined $150 and court costs.
He was extradited from Arizona and Highland County sheriff's deputy David Neil transported him to Virginia May 29.
Tyler operated an online business called Hammi's Hot Rod Engines. His standard issue orange coveralls bore the initials of the Middle River Regional Jail, where he has been held for 88 days having failed to appear April 25.
Last Friday, he faced a felony charge of obtaining money under false pretenses and a misdemeanor charge of failure to appear. His trial was originally set for April 25, but for the third time, he had notified the court he would not be able to attend, so the judge had ordered his arrest.
Kimble and his son, Chad Kimble, were rebuilding a vehicle in 2006. They went online to find a motor, and came across Tyler's Web site.
After a few phone calls, Tyler and the Kimbles reached an agreement for the cost of the work to be done. Roy Kimble sent two checks — one for $3,500 and another for $4,500. His checks were cashed, but the motor was never delivered and none of the money was returned.
Titus defended Tyler, saying the felony charge was "an abuse of the criminal justice system. He had a business. He was making money. Everything was going well until the business went south."
Titus insisted the matter should be handled as a civil case, and admitted his client was guilty of not delivering the motor and should return the money, but that he should not be found guilty of intentionally defrauding the Kimbles.
Chad Kimble said he called the number listed on Tyler's Web site to negotiate the repair, testifying that Tyler assured him he was able to build a big, black Chevrolet engine. It took two to three calls before they "struck a bargain" and agreed to pay $8,000, Kimble said.
"He assured me he had a legitimate business," said Kimble. "He said he had six certified techs and owned stock in a parts company … He didn't say where his shop was.
"I thought it was odd Ham always answered the phone, but then, that was good," Kimble continued. "I sent the first check June 1. Talked a good bit between first and second check. I sent the second check the end of June. He needed more money to finish the engine — $3,500. After that, he may have called back to say he received the check. After that I had no contact with him. He never told me he had hard times. My phone record shows one-minute hang ups after I got his machine."
Tyler received the second check from the Kimbles around June 29, Kimble said.
Between the end of June and the end of August, Kimble made 15-20 calls. Every time, he got an answering machine and no return call, Kimble said.
Kimble testified Tyler told him he needed the balance of the money so he could start work on the top half of the engine. "He told me the lower end of the engine was finished," said Kimble.
Kimble never received pictures of the work in progress, nor did he receive information on hours spent working on the project.
Lightner said Tyler told him in January 2007 that he promised to send $6,000 to the Kimbles if the commonwealth dropped extradition proceedings, but commonwealth's attorney John Lohr declined.
Tyler arrived in Highland County District Court March 21, 2007, just as judge Gregory Mooney was leaving. At the time, his bond was reduced to personal recognizance and he said he was going to obtain an attorney, Lightner told the judge.
Lightner said Tyler explained he lost $7,000 to credit card fraud sometime around June 2006. He became depressed, and didn't call the Kimbles after the end of June. The $6,000 Tyler offered to return to the Kimbles was a loan from his mother.
According to Lightner, Tyler did not have a motor for the Kimbles because the owner of the Tyler's machine shop took it. Lightner said Tyler was thinking of filing for bankruptcy, but never produced bankruptcy papers.
Tyler told Lightner he was to have a bankruptcy hearing March 27, 2007. He told the judge in district court he filed for bankruptcy. He was still offering to pay $6,000 up to June 1, 2007.
Both checks sent to Tyler went into Hammi's Hot Rod Engines' account. Tyler withdrew $800 from the second check.
Lightner said the Phoenix Better Business Bureau acknowledged that Hammi's Hot Rod Engines was a legitimate business and it had no complaints on file. Tyler told Lightner he had operated the business for two years.
After Lightner's testimony, Titus made a motion to strike, hoping the judge would dismiss the case. He explained that Tyler was operating a legitimate business, the business "went south" and "what you have to prove is an intent to defraud." Titus added the bottom half of the engine was finished, but the engine was repossessed in August, according to the sheriff's testimony. "Case law is clear. Intent has to be shown," said Titus.
Singleton countered, "In flim-flam cases it is hard to get direct evidence, but (intent) can be shown by circumstantial evidence." Singleton said 15 calls had been placed, but never answered.
Judge Franklin took the move to strike under advisement.
The trial continued and Tyler took the witness stand. He testified he had operated the business for two years and had sold parts for engines through EBay and his Web site. "I offered good quality engines with a good quality price," Tyler told the court. He said he was still doing business in June 2006 and had shipped three motors in June.
An engine Tyler sent to a customer in California was never paid for, he explained. "That ended up being the downfall of my business," he said. "Everything fell apart mid- to end of July. I had depression. I couldn't get out of bed. The credit card company back-charged my account. I stopped answering the phone, shut off my Web service and stopped EBay. I shut down."
Tyler said the Kimbles' motor was at his machine shop when "everything happened. I planned on finishing the engine but the machine shop kept it."
Tyler said he bought parts with the $800 taken out of Kimble's check. It was around that time his "business account got sucked dry."
"If I was going to keep the money, why would I deposit it?" Tyler asked.
The back-charge occurred the end of July, even though he sold the engine to the person in California the end of June. The card member refused to pay for the engine, said Tyler.
Tyler said the reason he didn't have Kimble's receipts with him is that he had been in jail in Virginia for three months and the records were in Phoenix.
Judge Franklin questioned Tyler. "You had a warrant for your arrest dealing with the Kimbles. How hard was it to bring everything of the Kimbles? How does that help me know what you spent on the Kimbles?"
Judge Franklin was referring to the records Tyler said he kept on the Kimble motor transaction. "I don't care you shipped an engine to Texas or California," Franklin continued. "What I care about are records on the Kimbles showing you spent Kimble's money on parts. Where are the records today?
"You called him (Kimble) June 29 for the balance of the money to finish the engine," Franklin said. "Where are the records on Kimble's engine (for the lower block)?"
Clearly frustrated with the line of questioning, Tyler said loudly, "March 21 (2007, the date of his arraignment on a felony warrant), I thought this was a joke." This was the reason for not bringing the file, Tyler explained.
"Did you think it was a joke when the judge certified this to the grand jury?" Franklin asked.
After the March 21, 2007, hearing, Tyler went back to Arizona. Tyler knew it was going to trial, said Franklin.
Tyler said he talked to a lawyer in Arizona who told him the case wouldn't go past the grand jury because he operated a legitimate business.
"How do I know you didn't take the Kimbles' money to spend on someone else's engine?" Franklin asked. "Are you still telling me this was a joke?"
"I spent money building an engine," Tyler insisted.
"I could gin up this stuff (receipts and invoices for parts purchased in the spring of 2006 presented as evidence by Tyler)," said Singleton. "Any business sets up files to identify customers. Money going in. Money going out. We don't have one document.
"The Better Business Bureau said this was a legitimate business; that doesn't mean it's not a flim-flam operation," he added.
Singleton reiterated that Tyler never produced the records he insisted he had. It was then Tyler said his mother was in the courtroom and had files from his business. Franklin ordered a recess to give the attorneys time to look at the new evidence.
After recess, a pile of manila envelopes were stacked on the defendant's table as Titus thumbed through the folders one by one, presumably looking for one that belonged to the Kimble engine project.
But none of the files contained information specifically about the Kimbles.
Singleton summarized the state's case against Tyler. "Fraud cases are often impossible to prove. A trial court can infer (from circumstantial evidence) that the Kimbles relied on false representation and paid.
"The facts Tyler says are correct except for the timetable," Singleton said.
Tyler's financial problems began in April 2006, said Singleton. He knew he had a problem when he began negotiations with the Kimbles in June. "He gets a call from Virginia," Singleton described. "He says, 'I can get this money and bail myself out and they can't do anything about it.' He miscalculated. Highland County and the sheriff were on him like a bird dog. He thought this was all a big joke.
"It's all circumstantial, but the course of conduct proves intent. Once he got the money he quit talking," said Singleton.
Titus pointed out the judge had to be convinced beyond a reasonable doubt that Tyler intended to defraud the Kimbles. He repeated his earlier assertion that the issue over the $8,000 was a civil case, not a criminal case.
"If the court rules guilty, that lays a precedent that anyone who doesn't pay back (money owed) is committing a felony," said Titus. "You must prove intent at the time false pretenses are made. We would all like to use the criminal justice system. You (criminal court) have teeth. Civil court doesn't.
"Tyler had a legitimate business," Titus said. "He was making engines and doing work up to June. Everything fell apart. There's no reason to think he isn't telling the truth. He was doing engine work on a flat fee. What different does it make if he was keeping records?"
Singleton added, "He doesn't have a file on the Kimbles. He talked to two pigeons from the mountains of Virginia. His intent developed when the Kimbles called; that is what the court can infer. It's strange he did not produce a file."
Judge Franklin quickly came to a decision. "I can't find beyond a reasonable doubt. I find him not guilty."
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