Holsapple v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

THOMAS MICHAEL HOLSAPPLE
OPINION BY
v. Record No. 030334 SENIOR JUSTICE HARRY L. CARRICO

COMMONWEALTH OF VIRGINIA October 31, 2003

FROM THE COURT OF APPEALS OF VIRGINIA

Code § 18.2-200.1 provides in pertinent part as follows:

If any person obtain from another an advance of money,
. . . with fraudulent intent, upon a promise to perform
construction . . . of any building or structure
permanently annexed to real property . . . and fail or
refuse to perform such promise, and also fail to
substantially make good such advance, he shall be deemed
guilty of the larceny of such money . . . if he fails to
return such advance within fifteen days of a request to
do so sent by certified mail, return receipt requested,
to his last known address or to the address listed in the
contract.

The defendant, Thomas Michael Holsapple, was convicted in

a bench trial of violating Code § 18.2-200.1, and he was

sentenced to serve twenty years in the penitentiary, with ten

years suspended. The Court of Appeals affirmed the

conviction, holding the trial court did not err in ruling, (1)

that Code § 18.2-200.1 does not require proof of actual

receipt by a contractor of a request to return an advance of

money, Holsapple v. Commonwealth, 39 Va. App. 522, 533, 574

S.E.2d 756, 761 (2003), and (2) that Holsapple's

unsatisfactory performance as demonstrated by the record

amounted to a failure to perform under Code 18.2-200.1, id. at
537, 574 S.E.2d at 763. We awarded Holsapple an appeal

limited to consideration of the Court of Appeals' affirmance

of these two rulings.

BACKGROUND

Viewed in the light most favorable to the Commonwealth,

the evidence shows that in 1998 the home of Sandra P. Frazier

was destroyed by fire. She and her brother-in-law, Calvin B.

Frazier, entered into a verbal contract whereby Calvin agreed

to install a modular home in place of the burned structure.

On May 12, 1998, Calvin contracted with Doug R. Currier, doing

business as Star Bright Construction, 1 for the building of a

foundation for the installation of a double-wide modular home.

Currier held a Class C contractors license, permitting him to

bid on and perform construction contracts not exceeding

$7,500.00 per contract or $150,000.00 in a year.

Holsapple was the manager and agent of Star Bright

Construction. On June 8, 1993, the Virginia Department of

Professional and Occupational Regulation permanently revoked

Holsapple's license as a building contractor.

Notwithstanding, he accepted advances of money to perform

construction work on at least three occasions prior to the

Frazier's May 12, 1998 contract with Star Bright. On April

1
Although a printed business form used by Star Bright
Construction shows Doug Currie as the owner, he is referred to
everywhere else in the record and briefs as Doug Currier.
2
14, 1998, Holsapple was convicted on three counts of

construction fraud and was sentenced on July 24, 1998, to

fifteen years' imprisonment, with all but fifteen months

suspended. He was released on bond and scheduled to report to

jail on August 11, 1998, but actually reported on August 31,

1998.

Holsapple was present when the May 12, 1998 contract

between Calvin Frazier and Star Bright was entered into, but

Currier signed the contract. At the time, Calvin paid

$6,000.00 toward the contract price of $12,500.00 and paid the

balance on June 2, 1998. Although Calvin had paid for the

work in full, Holsapple approached Ms. Frazier in July or

August of 1998 and told her that there was an outstanding

balance due of $1,100.00 for the work on the foundation and

that he would place a lien on her property if she did not pay

the $1,100.00. Holsapple and Currier also told Ms. Frazier

that the modular home Calvin was installing was poorly

constructed, and they offered to take over the project, tear

down what had been constructed, and erect a "stick-built" home

for her.

Ms. Frazier paid Holsapple the $1,100.00 and agreed on

August 5, 1998, to accept the offer of Holsapple and Currier

to take over the project, which was supposed to cost

$40,000.00. Both men insisted that the deposit for the new

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work be paid in cash. Holsapple determined that the amount

needed was $15,000.00. Ms. Frazier paid this amount to

Currier, but Holsapple wrote "received of Sandy Frazier

$15,000.00 in Cash Contracts for home" on the Proposal and

Acceptance form the two men used in their business.

On August 6, 1998, Holsapple and Currier demanded an

additional $9,000.00 from Ms. Frazier, which she paid.

Holsapple wrote the receipt for the payment, and Currier

signed it. On August 10, 1998, Holsapple and Currier

requested and received another $10,800.00 for the installation

of a well and a front porch on the home.

When Ms. Frazier asked Holsapple and Currier whether a

building permit was required to stick-build her home, they

responded that a permit was not needed because the stick-built

house and the existing modular home were the same and she

already had a permit for the modular home.

Ms. Frazier paid an additional $7,500.00, including

$3,745.00 for roof trusses, as shown on an undated Proposal

and Acceptance form filled out by Holsapple. A printed

provision on the form stated that "WE PROPOSE hereby to

furnish material and labor – complete in accordance with above

specifications for the sum of:" but no amount was entered.

Instead, a handwritten statement was inserted to the effect

that the "Bal for Rafters will be Refunded if other Rafters

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are installed." A representative of a local building supply

firm testified that someone from Star Bright Construction

purchased a set of house trusses on August 7, 1998, at a cost

of $983.84, and that the trusses were delivered to the Frazier

job site three days later.

The same building supply firm also delivered a white

vinyl sliding glass door to the job site for installation in

the Frazier home. The door was unloaded from the delivery

truck by Steven R. Buckland, a laborer-carpenter working on

the Frazier project, and he leaned the door against a tree.

On the same day the door was delivered, Holsapple instructed

Buckland to load the door onto Holsapple's truck so he could

put it in storage. Buckland later observed a white vinyl

glass sliding door of the same size, dimension, and shape

installed in a home Holsapple was building for himself and his

girlfriend.

Throughout these transactions, Ms. Frazier dealt

primarily with Holsapple. He "was always the one that was

doing all the figuring of what [she would] need and how much

[she would] need." Holsapple determined the amount that was

due from time to time, and Ms. Frazier then paid the money to

Currier at Holsapple's direction. Holsapple also purchased

the materials that were needed and did all the driving,

including transporting Currier to and from the job site.

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 Although Holsapple reported to the Albemarle-

Charlottesville Regional Jail on August 31, 1998, to serve the

sentences imposed on the earlier construction fraud cases, he

actually left the Frazier job site on August 15, 1998, after

the trial judge denied his request for work release so he

could continue working on the Frazier job. Currier continued

work on the Frazier project until he was incarcerated for a

conviction on an unrelated matter and later did some "piddly

stuff" after his release from incarceration.

The Albemarle County Building Inspector and a private

contractor inspected the Frazier home. No building permit was

posted on the property. After the inspection, the house was

declared not habitable. Some of the foundation joints had no

mortar in them, the sill plate was not attached to the

foundation, no hangers had been installed to hold the floor

joists in place, the roof trusses were not properly secured or

tied together, the roof sheathing was not properly nailed to

the trusses, and the shingles were not properly nailed to the

roof. The house was not level; on one eight-foot-long wall,

there was a three and one-half inch difference in floor to

ceiling height between one end and the other. The house,

which was fifty-three feet long, sloped six and one-half

inches from one end to the other. The porch was not connected

6
to the house, and there was no cement foundation or other

footer to support its weight.

The house was eventually torn down, "even the block

work." In its place, Ms. Frazier built "a prefab home."

On October 23, 1998, Ms. Frazier sent a letter to

Holsapple at the Albemarle-Charlottesville Regional Jail,

where he was incarcerated, demanding the return of her money,

totaling $45,137.16. She sent a similar letter to Currier.

Both letters were sent by certified mail, return receipt

requested. Neither recipient returned Ms. Frazier's money.

NOTICE

Holsapple argues that, by requiring notice to be sent by

certified mail with return receipt requested, the General

Assembly intended to place a burden on the Commonwealth to put

the return receipt into evidence to prove that the notice

actually arrived at its intended destination and was received

by someone at that address. Holsapple correctly states that

Code § 18.2-200.1 is a penal statute which must be strictly

construed against the Commonwealth and in favor of the

accused. Jimenez v. Commonwealth, 241 Va. 244, 251, 402

S.E.2d 678, 681 (1991). Holsapple also says that the phrase

"sent by certified mail, return receipt requested" is

ambiguous and that where statutory language permits two

7
tenable constructions, that construction which favors the

accused must be adopted.

We do not agree that the statutory language is ambiguous.

Hence, we construe the language according to its plain meaning

without resort to rules of statutory interpretation. Brown v.

Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). The

language of Code § 18.2-200.1 plainly means that a request for

a return of money advanced on a construction project is

sufficient notice if sent by certified mail, return receipt

requested, without proof of actual receipt.

Holsapple argues, however, that this Court's decision in

Rinkov v. Commonwealth, 213 Va. 307, 191 S.E.2d 731 (1972),

stands for the proposition that whenever the legislature

requires notice to be sent by certified mail with return

receipt requested, it intends to require some evidence of

actual receipt. We disagree with Holsapple's analysis of

Rinkov.

Rinkov involved a violation of the bad-check law. Code

§ 6.1-117, now Code § 18.2-183, provided that the making of a

check that is refused by the drawee for lack of funds shall be

prima facie evidence of intent to defraud unless the check is

paid within five days after the drawer receives written notice

that the check has not been paid. The statute also provides

that "[n]otice mailed by certified or registered mail,

8
evidenced by return receipt, to the last known address of the

maker or drawer shall be deemed sufficient and equivalent to

notice having been received by the maker or drawer."

(Emphasis added.) Because the notice to the maker or drawer

was returned by the post office as "unclaimed" and the return

receipt had not been signed, this Court held that the

Commonwealth was not entitled to rely on the presumption

created by the bad-check statute. 213 Va. at 310, 191 S.E.2d

at 733.

One lesson Rinkov does teach is that when the General

Assembly wants to require actual notice, it knows how to state

the requirement. It clearly stated the requirement in former

Code § 6.1-117, now § 18.2-183, by the addition of the

language "evidenced by return receipt," language that does not

appear in Code § 18.2-200.1. To construe Code § 18.2-200.1 as

imposing a burden upon the Commonwealth to prove actual

receipt would require this Court to add language to the

statute the General Assembly has not seen fit to include, an

exercise in which the Court is not free to engage. Barr v.

Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990).

Nor can Holsapple take any comfort from his reference to

the Virginia Tort Claims Act, the Habitual Offenders Act, and

the Interstate Agreement on Detainers. The Tort Claims Act

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specifically requires the claimant to prove "receipt of the

notice [of claim]." Code § 8.01-195.6. No such requirement

is contained in Code § 18.2-200.1.

With respect to the Habitual Offenders Act, former Code

§ 46.2-355, repealed in 1999, provided that, unless the

defendant was present at the hearing in which he was

adjudicated an habitual offender, the clerk was required to

mail a copy of the order of adjudication to the defendant at

his last known address, and "[m]ailing, by first class mail,

shall be deemed adequate notice of the order of the court, and

no other notice shall be required." In Reed v. Commonwealth,

15 Va. App. 467, 424 S.E.2d 718 (1992), the Court of Appeals

found that the defendant was entitled to actual notice of his

adjudication, not from the language just quoted, but, as

Holsapple concedes, from "other language within [the] same

statute." No such "other language" is contained in Code

§ 18.2-200.1.

Concerning the Interstate Agreement on Detainers, Article

III(b), found in Code § 53.1-210, provides that a prisoner

held in one state shall give or send his request for final

disposition of a charge pending in another state to the warden

or other official having custody of the prisoner "who shall

promptly forward it . . . to the appropriate prosecuting

official and court [of the receiving state] by registered or

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certified mail, return receipt requested." Eckard v.

Commonwealth, 20 Va. App. 619, 460 S.E.2d 242 (1995), involved

the question whether a prisoner incarcerated in Tennessee had

followed the proper procedure in requesting that a final

disposition be made of a charge pending in Virginia so as to

start the clock running on the 180-day period in which the

Commonwealth must bring the prisoner to trial or face

dismissal of the Virginia charge.

The Court of Appeals quoted from Fex v. Michigan, 507

U.S. 43 (1993), to the effect that the receiving state's

receipt of the request starts the clock on the 180-day period

and that the requirement for the warden to forward the request

" 'by registered or certified mail, return receipt requested'

. . . provides for documentary evidence of the date on which

the request is delivered to the officials of the receiving

State." Id. at 51. See Eckard, 20 Va. App. at 627, 460

S.E.2d at 246. Holsapple points to the statement about

"documentary evidence" and invites us to convert it into a

requirement that, whenever the phrase "by certified mail,

return receipt requested" is used, the Commonwealth must prove

actual receipt. We fail to see the connection Holsapple

attempts to make and, accordingly, decline his invitation.

Finally, Holsapple argues that evidence of actual receipt

by authorities at the local jail is required to satisfy the

11
due process requirement of the Constitution of the United

States. However, Holsapple did not make this argument in the

trial court, and he did not make it in the Court of Appeals

until he filed a petition for rehearing. Having failed to

raise the due process claim timely, Holsapple cannot raise it

now. Rule 5:25. 2

FAILURE TO PERFORM

Holsapple argues that the Court of Appeals erred in

holding that poor quality workmanship can mean a failure to

perform within the meaning of the construction fraud statute.

He says that the central issue in this phase of his appeal is

the meaning of the word "fail" in the statute requiring the

Commonwealth to prove that he did "fail or refuse to perform

such promise." He maintains that by construing the phrase

"fail to perform" to include some but not all cases of faulty

workmanship, the Court of Appeals has rendered the statute

impermissibly vague. 3

2
During argument in the trial court, Holsapple mentioned
"fundamental fairness" several times, which he says was
sufficient to raise the due process claim. However, the
argument was directed, not to the notice issue, but to
Holsapple's claim that he was entitled to a committee or
guardian ad litem because of his incarceration, a claim this
Court refused to review.
3
Although Holsapple argues that the Court of Appeals'
interpretation has rendered the construction fraud statute
impermissibly vague, he does not argue that the statute itself
is vague. Nor does he claim that the statute is overbroad.
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 Holsapple points out that Code § 18.2-200.1 uses the term

"fail" in conjunction with the term "refuse," and he says that

the use of the latter term "is clearly appropriate because

such a refusal would provide direct evidence of the

defendant's specific intent to commit larceny." He then says

that "[i]n this context, the word 'fail' should be limited to

those cases where such a direct admission of intent is not

forthcoming from the defendant but other facts and

circumstances indicate a specific intent to keep the advance

of money and not complete the work."

We disagree with Holsapple that the Court of Appeals'

interpretation of Code § 18.2-200.1 rendered the statute

impermissibly vague. Quoting Rader v. Commonwealth, 15 Va.

App. 325, 332, 423 S.E.2d 207, 212 (1992), a case involving

the very statute in issue here, the court made this statement:

"It is apparent from reason and common sense that
construction fraud can occur despite the fact that a
builder or contractor begins to perform on the
contract. . . The relevant question is whether a builder
or contractor obtained an advance based upon future work
promised with a fraudulent intent not to perform or to
perform only partially, not whether the contractor had
performed work for which he was paid."

Holsapple, 39 Va. App. at 537, 574 S.E.2d at 763.

Continuing, the Court of Appeals said:

Common sense would likewise dictate that a
performance of construction which is so poor as to render
a structure unsafe or uninhabitable could, under the
appropriate circumstances, constitute the failure to
perform the contractual promise at issue. Here, the

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 evidence demonstrated that the truss work was done so
poorly that the home was simply not safe to live in.
Accordingly, while we do not hold that poor workmanship
per se constitutes a failure to perform the contractual
promise, on these facts we find no error in the trial
court's determination that the faulty workmanship in this
case constituted a failure to perform within the meaning
of the statute.

Id.

Citing Commonwealth v. Carter, 21 Va. App. 150, 153, 462

S.E.2d 582, 584 (1995), Holsapple notes that "[a] penal

statute when measured by common understanding and practices

must define the proscribed conduct with sufficient

particularity to warn a person of what behavior is

prohibited." We are of opinion that the Court of Appeals'

construction of Code § 18.2-200.1 satisfies this test.

And, for purposes of this discussion, we will take

Holsapple at his word that "[i]n this context, the word 'fail'

should be limited to those cases where . . . a direct

admission of intent is not forthcoming from the defendant but

other facts and circumstances indicate a specific intent to

keep the advance of money and not complete the work." Such

other facts and circumstances are abundantly present in this

case. Indeed, the record of Holsapple's conduct reeks with

fraud.

Holsapple suggests that the blame for what happened on

the Frazier construction project should be placed on Currier.

Specifically, Holsapple says that while he negotiated and

14
drafted the contracts with Ms. Frazier, Currier, as the prime

contractor, signed all contracts and received all advances of

money directly from Ms. Frazier and that she never advanced

any money to Holsapple. However, Holsapple forgets Ms.

Frazier testified that she dealt only with him, that he told

her what to pay and when to pay it, and that she paid the

advances to Currier only because Holsapple told her to.

Furthermore, Holsapple represented himself as the manager and

agent of Star Bright Construction, and the record demonstrates

clearly that he and Currier acted jointly throughout the

construction project.

"[I]f a person is present at the commission of a crime,

inciting, encouraging, advising or assisting in the act done,

he is deemed to be an aider and abettor, and is liable as

principal." Snyder v. Commonwealth, 202 Va. 1009, 1015, 121

S.E.2d 452, 457 (1961). It is in this light that Holsapple's

conduct is to be assessed.

Stripped permanently of his license to perform

construction work and awaiting sentence on three convictions

for construction fraud, Holsapple undertook a construction

project and accepted an advance of money with full knowledge

that he would be unable to complete the project if, as it

turned out, he was sentenced to incarceration. He says he

hoped the sentencing court would put him on work release so he

15
could complete the project, but there was little chance that

would happen and, apparently, it was not seriously considered

by the sentencing court. And, to make matters worse,

Holsapple continued to ask for and receive advance payments

from Ms. Frazier even after he had been sentenced to

incarceration and was free on bond.

Further, Holsapple diverted a white vinyl glass sliding

door from the Frazier construction project to one of his own.

On the threat of filing a lien on her property, he extracted

$1,100.00 from Ms. Frazier for work on the foundation when

payment in full for that work had already been made. He

secured another $3,745.00 from her to purchase roof trusses,

for which only $983.84 was paid. He says that the contract

with Ms. Frazier concerning the trusses provided that the

amount received was for labor as well as materials and, since

there was no evidence concerning the cost of labor, he cannot

be charged with fraudulent intent with respect to the

difference between what was received and what was paid for the

trusses. However, the line on the printed form relating to

the cost of labor was not filled in but instead contained a

handwritten statement that the balance "for Rafters will be

Refunded if other Rafters are installed," whatever that means.

No such refund was ever made.

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 Finally, the sorry mess Ms. Frazier was left with is

conclusive evidence that Holsapple's conduct amounted to more

than a mere failure to perform. Everything about the

uninhabitable structure from the unfilled mortar joints in the

foundation to the insecure trusses in the roof displays a

gross misperformance and corner-cutting on Holsapple's part,

done with "a specific intent to keep the advance of money and

not complete the work." Accordingly, we find that all the

elements of the crime of construction fraud proscribed by Code

§ 18.2-200.1 were fully established against Holsapple.

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.

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