The jury trial for the former owner of a local swimming pool construction company began in Baxter County Circuit Court Tuesday (January 21).
Forty-two-year-old Jessica Ruth Trivitt was charged with taking thousands of dollars in down payments from victims to build pools on their property and providing few materials and doing little if any work.
Court records show that down payments in the three Baxter County cases filed against her totaled about $130,000.
The case never reached the jury. As is normal in criminal cases, the defense asked for a directed verdict of acquittal after both sides had rested, saying the state had not presented enough evidence to prove what Trivitt had done was a crime.
Circuit Judge John Putman said in 23 years on the bench, he had never rendered a directed verdict as was being requested, but that in this case he agreed the state had not provided all of the evidence necessary to convict Trivitt of the crime charged.
“This is a breach of contract case as it stands and that is a civil matter, not a criminal matter. What I needed to hear and see was evidence of intent, that the defendant took the money and used it on herself.”
The state claimed that Trivitt exercised unauthorized control over or made an unauthorized transfer of the property of the alleged victims.
In making a case for the directed verdict of acquittal, Trivitt’s defense attorney, Bobby Digby, Jr., of Benton said all of the victims had testified under oath that they willingly made the down payments on pool project called for in the contracts. “There was no unauthorized transfer in these transactions as is required to prove theft,” Digby told Judge Putman.
When the lead investigator on the case, Lt. Brad Hurst of the Baxter County Sheriff’s Office, was on the stand, the defense questioned him closely as to whether he had found Trivitt was buying expensive jewelry, high-priced cars, or taking lavish vacations.
Hurst said he had not seen any such evidence.
Judge Putman said the state had presented evidence that the money had gone into Trivitts business account but none to show how it had gone out.
Digby said the case was “mainly about a failed small business, about a person who was not good at business, but not a criminal.”
TRIAL HALTED WHILE SON SENTENCED
Trivitt’s trial had to be interrupted for a short time while her son, 22-year-old Dylan Decker, entered a guilty plea to charge stemming from a drug robbery gone bad in which a resident of the home that was invaded was shot.
After Decker was sentenced to 20 years in prison, Trivitt and other members of the family became emotional and had to leave the courtroom.
FIRST TRIAL ENDS IN MISTRIAL
Trivitt’s first jury trial was held in mid-August last year and ended in a mistrial after the bulk of the case had been presented and it was nearing time to turn Trivitt’s fate over to the jury.
On January 19, Digby told KTLO, Classic Hits and the Boot News that in the theft statute “there are a lot of different ways to commit the crime.” He said prosecutors had told him from the beginning that theft by deception would be the charge against Trivitt.
He said it was not until the parties in the case checked the jury verdict forms prior to closing arguments that it was noticed “the charge appearing on the forms was simple theft, not theft by deception”
Before the mistrial was granted, a lengthy discussion went on between Deputy Prosecutor Kerry Chism, Digby and another lawyer from his firm and Circuit Judge John Putman.
The arguments were presented out of the hearing of the jury.
Digby said Trivitt’s defense was built around the theft by deception charge and it was not possible to make all of the changes necessary before closing arguments and handing the case to the jury.
During the discussion at the bench, Deputy Prosecutor Kerry Chism was heard to say at one point that “theft by deception was not even mentioned in documents filed in the case.”
In reviewing the documents filed in the case from the time it was opened until the change in charges on the jury verdict forms issue came up near the end of the first jury trial, the documents in the case do not contain references to a theft by deception charge.
Digby told KTLO, Classic Hits and The Boot News, “the change to a simple theft charge was not noticed until the parties were already in the final phases of the trial and that was the major problem.”
Jury verdict forms are not filed in a case until after the panel has made its decision and its recommendation is accepted by the presiding judge.
After more discussion and research, Judge Putman granted the motion for a mistrial, setting the stage for Tuesday’s retrial.
Trivitt whose last known address was in Mountain Home, was once listed as the owner of Southern Pool Company. She has three theft of property cases filed against her in Baxter County and one in Marion.
The three Baxter County cases were combined for Tuesday’s trial, since they were based on similar circumstances.
BANKRUPTCY
Trivitt also filed a Chapter 7 bankruptcy and an on-line bankruptcy liquidation auction was held to dispose of the assets of Southern Pool. The auction was conducted by Block Auction Company of Springdale under instructions from the U.S. Bankruptcy Court for the Western District of Arkansas.
The state contends that in filings for her bankruptcy case, Trivitt admitted she owned each of the victims the amounts they claimed. The state also said the bankruptcy court documents showed that she used the money given to her by the victims as her own since she showed only $300 remaining in her bank accounts.
In making his ruling for a directed verdict on Tuesday, Judge Putman said if evidence had been introduced about where the money went it could have resulted in a different decision.
In records maintained by the Arkansas State Secretary of State’s Office, Southern Pool Company of Mountain Home, LLC, shows Jessica Trivitt as the “incorporator/organizer.” The status of the business is shown as “dissolved.”
The former owner of Splash Pools and Spas, forerunner to Southern Pools, 62-year-old John N. Dunn, has also been accused of taking money from customers but doing little or none of the promised work.
A theft of property charge filed against Dunn last year in Marion County mirrors the ones filed against Trivitt in Marion and Baxter Counties.
In Marion County, Dunn is accused of taking a customer’s check for $43,200 to install a fiberglass swimming pool at a Bull Shoals residence and doing no work.
According to the probable cause affidavit, the customer called the Marion County Sheriff’s office at one point to report that he had learned that Dunn had “fled” to Cozumel Mexico.
Court records show that Dunn had told customers at various times that he was in Mexico, or that he would return from Mexico to take care of issues that had arisen.
Dunn has been charged with theft of property and is free on $50,000 bond.
Records indicate that Trivitt and Dunn were both involved in Splash’s Pool and Spa, LLC.
According to Court documents, Trivitt was once listed as manager of Splash’s Pool and Spa in Mountain Home at a time when the business was reportedly owned by Dunn.
Records show she purchased the business from him sometime in early 2019 and changed the name to Southern Pool Company.
In a civil suit filed against the business by a Viola couple, it is reported the victims went to the company’s office after hearing the business was for sale to find out if a change of ownership would impact the pool installation at their property.
According to court records, the couple spoke with Trivitt, believing at the time she was the manager of the company.
Trivitt is alleged to have told the customers she had purchased the business from Dunn and that she would be the point-of-contact in the future.
The Baxter County cases:
In one case, Trivitt is charged with accepting $22,500 as a down payment on a pool project in Midway. The contract was finalized April 21, 2022, but when the victim made a report to the Baxter County Sheriff’s office about a month later, no work had been done and no equipment or materials had been delivered to the site.
On January 9, 2022, a homeowner in Norfork contacted the sheriff’s office and reported he had signed a contract with Trivitt/Southern Pool Company to construct an in-ground swimming pool on his property. The agreed price was $113,885 with a down payment of almost $57,000.
Since the contract was signed August 4, 2022, and the down payment made, no work had been done and no equipment or material had been delivered to the site.
The victim said he had made several attempts to contract Trivitt but had only gotten text messages containing excuses as to why no work had been done.
Another case currently open on Trivitt/Southern Pool Company stems from the same situation as others that have been filed. According to the probable cause affidavit, the owner of a residence in Briarcliff told police he had signed a contract to construct an in-ground pool on his property in late July 2022.
He said the agreed price was to be about $98,300 with a $50,000 down payment. He said he gave a check for the down payment to Trivitt and investigators report the check was deposited into the Southern Pool account the same day.
The property owner said he made more than a dozen attempts to reach Trivitt. His calls went unanswered. He said he did manage to make personal contact with Trivitt once but received no satisfactory answers as to what was delaying the project.
A trial date in the Marion County case is now set for early next month. The victim paid slightly more than $113,000 in advance for constructing a 16×40 foot swimming pool and other “water features” at a residence in Bull Shoals.
The contract set the total price of the Bull Shoals project at almost $127,000.
In the Marion County case, work did begin and the pool and spa were set in place followed by the start of installing plumbing. The work stopped at that point and never started again.
The property owner told investigators he had several talks with Trivitt to try and get the project back on track, but was given excuses, including a claim that critical parts were on back order.
Despite the property owner’s efforts, work never resumed. According to the probable cause affidavit, the pool was described as being full of rain water and holes were left in the backyard along with sections of exposed pipes.
The property owners contracted with another pool company to finish the work and to furnish some items that were to be provided by Trivitt’s company under the original contract, such as an $18,000 pool cover.
According to the probable cause affidavit, the total cost to complete work left undone by Trivitt and her company on the pool project was nearly $73,000.
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