Holsapple v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Agee, Felton and Kelsey
Argued at Richmond, Virginia

THOMAS MICHAEL HOLSAPPLE
OPINION BY
v. Record No. 3078-00-2 JUDGE ROBERT J. HUMPHREYS
JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Charles L. Weber, Jr., for appellant.

Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

This matter comes before the Court on a rehearing en banc

from a decision of a divided panel rendered July 9, 2002. See

Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210 (2002).

The panel affirmed Holsapple's conviction for fraudulently

obtaining an advance of payment for construction work to be

performed in the future, in violation of Code § 18.2-200.1. In

reaching this determination, the panel affirmed the trial court's

rulings that 1) Code § 18.2-200.1 does not require proof of actual

notice; 2) Holsapple was not subject to a disability pursuant to

Code §§ 8.01-9 and 53.1-223; 3) the unsatisfactory performance

demonstrated on these facts amounted to a failure to perform under
Code § 18.2-200.1; 4) the evidence was sufficient, as a matter of

law to establish the requisite intent; and 5) the evidence was

sufficient, as a matter of law, to establish that Holsapple was

the criminal agent. For the reasons that follow, we likewise

affirm the rulings of the trial court and Holsapple's conviction.

I. Background

In reviewing criminal convictions, the evidence must be

viewed in the light most favorable to the Commonwealth. Boothe v.

Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)

(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975)). "In so doing we must 'discard the evidence of

the accused in conflict with that of the Commonwealth, and regard

as true all the credible evidence favorable to the Commonwealth

and all fair inferences that may be drawn therefrom.'" Norman v.

Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986)

(quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980)).

So viewed, the evidence presented at trial established that

on June 8, 1993, the Virginia Department of Professional

Occupational Regulation permanently revoked Holsapple's license as

a building contractor in Virginia. However, Holsapple continued

to accept monetary advances to perform construction work.

Holsapple accepted one such advance from Sandra Frazier and her

brother-in-law. Frazier's home had burned in 1998. Subsequently,

she and Calvin Frazier, her brother-in-law, entered into a verbal
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agreement wherein Calvin agreed to install a modular home in place

of Frazier's burned home. On May 12, 1998, Calvin contracted with

Doug Currier, doing business as Star Bright Construction, to build

a foundation for the installation of the "double-wide" modular

home. Holsapple, who worked as manager and agent for Star Bright

Construction, was present when the contract was entered into, but

Currier signed the contract and was Calvin's contact during the

course of the project. Calvin made a $6,000 payment for the

construction of the foundation to Star Bright Construction on the

date the contract was signed. He paid the balance on June 2,

1998.

Although Calvin had paid for the work, in July or August of

1998, Holsapple approached Frazier and advised her that there was

an outstanding balance of $1,100 for his work on the foundation.

He told her that he would place a lien on her property if she did

not pay the outstanding amount. In addition, he and Currier told

her that the modular home Calvin was installing was poorly

constructed. They offered to take over the construction, tear

down the existing structure, and provide her with a "stick-built"

home. Frazier paid the $1,100 and agreed to consider their offer.

After receiving several phone calls from Currier and

Holsapple concerning their offer, Frazier finally contracted with

Currier on August 5, 1998. Both Holsapple and Currier insisted

that the deposit for the work be paid in cash. Holsapple

determined the amount needed was $15,000. Frazier paid this
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amount to Currier that same day. Holsapple wrote "received of

Sandy Frazier $15,000 in cash contracts for home" on the Proposal

and Acceptance Form, which the two men used during the course of

their business.

On August 6, 1998, Holsapple and Currier demanded and

received an additional $9,000 from Frazier. Holsapple wrote the

receipt for the amount, and Currier signed it. On August 10,

1998, Holsapple and Currier requested and received another $10,800

to install a well and a covered front porch on the home.

In addition, Frazier paid $7,500.05, on an uncertain date,

for roof trusses and block work. The Proposal and Acceptance

Form, signed by Currier, read, in relevant part, as follows:

WE HEREBY SUBMIT SPECIFICATIONS AND
ESTIMATES FOR:

I propose to order one set of House truss
[sic] 5/12 pitch for A [sic] house 26 ft[.]
wide by 50 ft[.] Long [sic] with 12 in[.]
over[-]hang on front and back of house[.]

Total Cost $3,745.00
Bal[.] on Block Work $1,150.00
Received in Cash $4,885

* * * * * * *

WE PROPOSE hereby to furnish material and
labor – complete in accordance with above
specifications for the sum of:

Bal[.] for Rafters [sic] will be Refunded
[sic] if other Rafters [sic] are
installed[.]

$_______________

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 Payment to be made: Pd[.] Total [sic]
$7,500.05 in cash[.]

During these transactions, Frazier dealt primarily with

Holsapple. Holsapple always determined the amounts that were due,

but Frazier paid the monies to Currier at Holsapple's direction.

The workers on site were paid in cash by Holsapple. Holsapple

purchased the necessary materials, and Holsapple generally did all

of the driving, including transporting Currier to and from the

site.

By August 31, 1998, Holsapple was incarcerated at the

Albemarle-Charlottesville Regional Jail for a conviction on an

unrelated matter. 1 Holsapple actually left the job site on August

15, 1998, when the trial judge in the unrelated matter denied his

request for work-release to continue working on the project.

Currier and other workers continued the construction for a few

months, until Currier was also incarcerated for a conviction on an

unrelated matter. At that point, construction came to a halt,

with the exception of a small amount of work that Currier

completed on the project once he was released from his

incarceration.

In October of 1998, the construction was inspected by

Albemarle County Building Inspector David Cook and by Frank

Marshall, a private contractor. Cook and Marshall determined that

1
Holsapple presented evidence that he was released from
incarceration on July 2, 1999.
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the house was "uninhabitable," due to faulty workmanship. Among

other things, Marshall observed the roof trusses were not secured

properly. Marshall testified, "[t]hey probably had – I probably

pulled out ten nails out of twenty-six (26) trusses. It wasn't

secured to the walls."

On October 23, 1998, Frazier sent a letter to Holsapple at

the Albemarle-Charlottesville Regional Jail, demanding return of

her money. Frazier sent an identical letter to Currier. Both

letters were sent by certified mail, return receipt requested.

Neither Currier nor Holsapple returned the funds.

Based on these facts, the trial court found Holsapple guilty

of construction fraud, finding:

So I think this case boils down to the
thirty-seven hundred and forty five dollars
($3,745) for the trusses, because the eleven
hundred and fifty dollars ($1,150) appears
from the evidence to be a representation of
money due for work that was performed prior
to August 5th. I mean Mr. Frazier testified
that was completed by June 2nd or something
of that nature. So, I don't see where the
eleven fifty is for future work to be
performed, which is under this statute
. . . . So it boils down to the thirty-seven
forty-five. At the time that Mr. Holsapple
said to Ms. Frazier, and this is sometime
early on in the contractual relations with
the parties on or about August 5, 6, or 7,
that I need thirty-seven forty-five for
trusses, and he writes it out in his own
handwriting as to what kind of trusses he
needs, length, width, etcetera, and the
price is thirty-seven forty-five. Not some
round figure, but thirty-seven forty-five.
And then if other trusses are used or other
rafters used, there will be a

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refund. . . . He told Ms. Frazier how much
he needed, he was present when the money was
attempted to be handed to him and he told
Mr. Currier who took it, he is represented
as the agent of the company and general
manager and the Court finds he was the
person under the statute who received the
money jointly with Mr. Currier. . . . I'm
finding that the thirty-seven forty-five was
a fraudulent intent representation of I need
this money and it was only nine eighty-three
that was paid. There was a promise to
perform construction in the future. There
was a failure to perform the promise, he
failed to refund the money. He had an
opportunity to do it between August 6th and
August 31st. The truss work was not
performed in a satisfactory manner, it was
only partially performed. . . . And on the
question of failure to return, there was a
demand for the return of money through the
letter, it was not returned within fifteen
(15) days. The letter was sent by certified
mail, return receipt. I understand
[Holsapple's] argument, but the letter was
addressed to Starbright Construction and
Mr. Holsapple was agent and general manager
and it was sent to the last known address,
which was the complex. There is no evidence
he was in jail on a felony charge so that he
was a person under a disability for having
been convicted of a felony. And I find that
element of the statute has been complied
with, so I find him guilty as charged under
the indictment.

II. Notice

Code § 18.2-200.1 provides as follows:

If any person obtain from another an advance
of money, merchandise or other thing, of
value, with fraudulent intent, upon a
promise to perform construction, removal,
repair or improvement of any building or
structure permanently annexed to real
property, or any other improvements to such
real property, including horticulture,
nursery or forest products, and fail or
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 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, merchandise or other
thing 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.

As we held in Klink v. Commonwealth, 12 Va. App. 815, 407 S.E.2d

5 (1991), this statute requires proof of the following elements:

(1) obtaining an advance of money from
another person, (2) a fraudulent intent at
the time the advance is obtained, (3) a
promise to perform construction or
improvement involving real property, (4) a
failure to perform the promise, and (5) a
failure to return the advance "within
fifteen days of a request to do so by
certified mail" to the defendant's last
known address or his address listed in the
contract.

12 Va. App. at 818, 407 S.E.2d at 7.

Holsapple first contends the Commonwealth failed to prove he

received notice of Frazier's letter demanding repayment of the

funds advanced. However, Holsapple does not contest the

Commonwealth's evidence that Frazier mailed the notice, by

certified mail, return receipt requested, to Holsapple's last

known address.

We recognize that "[a] criminal statute, such as Code

§ 18.2-200.1, must be strictly construed" against the

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

S.E.2d 678, 681 (1991). We further recognize that "the notice

requirement of the statute [is] material." Id. Nevertheless, the
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plain language of the statute simply does not require a showing of

actual receipt.

Holsapple argues, relying on Rinkov v. Commonwealth, 213 Va.

307, 191 S.E.2d 731 (1972), that "the Commonwealth is required to

produce evidence not only of the mailing [of the notice], but also

of its receipt." The Supreme Court of Virginia indeed held in

Rinkov that, in order for the statutory presumption of intent to

defraud to arise under the bad check statute, Code § 18.2-183,

the notice to be given defendant must have
been mailed by certified or registered mail
and evidenced by return receipt. Manifestly
the purpose of requiring the notice to be
sent by registered or certified mail, and
evidenced by a receipt, is to have not only
evidence of the required mailing to the
defendant, but also evidence that the notice
was either received in person by the
defendant (as would be shown by his
signature on the return receipt), or that
the letter did in fact reach the last known
address of the defendant and was there
accepted by someone at that address.
Otherwise there would be no reason for the
statute to require the notice be sent by
registered or certified mail and evidenced
by a return receipt.

213 Va. at 310, 191 S.E.2d at 733. However, Code § 6.1-117 (now

Code § 18.2-183) specifically required that notice be "mailed by

certified or registered mail, evidenced by return receipt, to

the last known address of the maker." (Emphasis added). In

fact, the evidence in Rinkov's trial proved that although the

notice was properly mailed, it was returned as unclaimed.

Rinkov, 213 Va. at 308, 191 S.E.2d at 732. Thus, Rinkov is

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readily distinguishable from the case at bar. The statute here

requires nothing more than proof that the notice was "sent by

certified mail, return receipt requested, to [defendant's] last

known address or the address listed in the contract." Code

§ 18.2-200.1. As the Supreme Court of Virginia stated in

Jimenez:

We think it clear that the General Assembly
meant what it said, i.e., that a person
accused of violating the statute cannot be
convicted unless the evidence proves beyond
a reasonable doubt, inter alia, that the
accused "fail[ed] to return [the] advance
within fifteen days of a request to do so,"
and that the request was "sent by certified
mail, return receipt requested."

Jimenez, 241 Va. at 251, 402 S.E.2d at 681 (holding that actual

notice of request does not satisfy the requirements of Code

§ 18.2-200.1).

Indeed, "[w]here a statute is unambiguous, the plain meaning

is to be accepted without resort to the rules of statutory

interpretation." Last v. Virginia State Bd. of Med., 14 Va. App.

906, 910, 421 S.E.2d 201, 205 (1992). "'Courts are not permitted

to rewrite statutes. This is a legislative function. The

manifest intention of the legislature, clearly disclosed by its

language, must be applied.'" Barr v. Town & Country Properties,

Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting

Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841

(1944)). If the legislature intended to require a showing of

actual receipt as it did in Code § 18.2-183, it presumably would
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have used language to do so. Accordingly, we find that the trial

judge had sufficient evidence to prove beyond a reasonable doubt

that Frazier requested return of her advanced payments.

III. Appointment of a Guardian ad Litem or Committee

Holsapple next contends the trial court erred in finding he

was not a "person under a disability" as defined by Code

§ 8.01-2(6)(a), and as such, that Holsapple was not entitled to an

appointment of a guardian ad litem pursuant to Code § 8.01-9, or a

committee, pursuant to Code § 53.1-223, once Frazier forwarded the

notice to him while he was incarcerated. 2 Thus, Holsapple argues

2
Code § 8.01-9 provided as follows, in relevant part, at
the time Frazier sent the notice:
A. A suit wherein a person under a
disability is a party defendant shall not be
stayed because of such disability, but the
court in which the suit is pending, or the
clerk thereof, shall appoint a discreet and
competent attorney-at-law as guardian ad
litem to such defendant, whether the
defendant has been served with process or
not. . . .

B. Notwithstanding the provisions of
subsection A or the provisions of any other
law to the contrary, in any suit wherein a
person under a disability is a party
defendant and is represented by an
attorney-at-law duly licensed to practice in
this Commonwealth, who shall have entered of
record an appearance for such person, no
guardian ad litem need be appointed for such
person unless the court determines that the
interests of justice require such
appointment; or unless a statute applicable
to such suit expressly requires an answer to
be filed by a guardian ad litem. The court
may, in its discretion, appoint the attorney
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he was denied fundamental due process rights as he was not

properly notified of the nature of the "suit" against him.

However, Holsapple bases his claim on his contention that the

trial court erroneously found Holsapple's incarceration was not

due to a felony conviction. Indeed, the trial court held that

"there [was] no evidence [Holsapple] was in jail on a felony

charge so that he was a person under a disability for having been

convicted of a felony." The record demonstrates Holsapple failed

to introduce any evidence concerning the nature of his 1998-1999

incarceration at trial. 3 Furthermore, these sections apply only

to civil proceedings. See Code § 8.01-2.

of record for the person under a disability
as his guardian ad litem, in which event the
attorney shall perform all the duties and
functions of guardian ad litem.

Any judgment or decree rendered by any court
against a person under a disability without
a guardian ad litem, but in compliance with
the provisions of this subsection B, shall
be as valid as if the guardian ad litem had
been appointed.

Code § 53.1-223 provided:
No action or suit on any claim or demand,
except actions to establish a parent and
child relationship between a child and a
prisoner and actions to establish a
prisoner's child support obligation, shall
be instituted against a prisoner after
judgment of conviction and while he is
incarcerated, except through his committee.
3
Holsapple's unsuccessful attempt to re-open the case to
submit evidence establishing his disability was unsuccessful,

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 Accordingly, we find no error in the trial court's

determination that there was no evidence to establish Holsapple

was a "person under a disability," or that he was not entitled to

an appointment of a guardian ad litem, or a committee, for

purposes of notice.

IV. Failure to Perform

Holsapple next argues that the trial court erred in finding

he failed to complete the construction as promised. Holsapple

contends the trial court erred in finding that poor workmanship

amounted to a "failure to perform" under the statute. Further, he

states that the trial court erred in finding the workmanship was

poor because it failed to comply with building codes. He also

argues that Currier was the individual responsible for the poor

workmanship, as opposed to him, as he was incarcerated at the time

the work was performed and in any event, he was merely Currier's

employee. In the alternative, Holsapple contends he was "legally

justified" in failing to complete the construction on the truss

work because he was sentenced to prison in August 1998, and by

August 15, 1998, the trial court had denied his request for

work-release to complete the construction.

We find no merit in Holsapple's argument that the trial

court's finding, "Holsapple failed to perform on the promise

and the conviction order he attached to his Amended Motion to
Set Aside the Verdict does not constitute evidence.
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because the workmanship was unsatisfactory seems inconsistent with

the plain language of the statutes." Indeed, we have found

[i]t 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.

Rader v. Commonwealth, 15 Va. App. 325, 332, 423 S.E.2d 207, 212

(1992) (emphasis added).

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 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.

Further, we find no error in the trial court's consideration

of building code violations in determining that the workmanship

was faulty. "Evidence which 'tends to cast any light upon the

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subject of the inquiry' is relevant." Cash v. Commonwealth, 5

Va. App. 506, 510, 364 S.E.2d 769, 771 (1988) (citations omitted).

"The test establishing relevance is not whether the proposed

evidence conclusively proves a fact, but whether it has any

tendency to establish a fact at issue." Wise v. Commonwealth, 6

Va. App. 178, 188, 367 S.E.2d 197, 203 (1988). "Admissibility of

evidence is an issue left to the discretion of the trial court,

and unless the appellant proves an abuse of discretion, no error

will lie." Rader, 15 Va. App. at 331, 423 S.E.2d at 211. In this

case, evidence of the building code violations was relevant and

probative because it demonstrated the poor quality of the

workmanship. Therefore, the violations provided circumstantial

evidence that the fact finder could consider to prove the

necessary elements under the statute, and the trial court did not

abuse its discretion in admitting such evidence.

Holsapple next contends he was not responsible for the work

on the trusses, because he was incarcerated at the time the

trusses were installed. However, Frazier testified that the

"trusses were on" and that the work was "pretty far along" at the

point Holsapple left the site due to his incarceration. The fact

that Robert Johnson, an employee of Currier's who worked on

construction of the home, testified that the roof was not on when

Holsapple left, is of no consequence. Indeed, it is within the

province of the trial court to "evaluate[] the credibility of

witnesses, resolve[] the conflicts in their testimony, and weigh[]
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the evidence as a whole. Its finding is entitled to the same

weight on appeal as that accorded a factual finding by a jury and

will not be disturbed unless it is plainly wrong." Stockton v.

Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984). Here,

the trial court believed Frazier's testimony that the construction

involving the trusses was complete at the time Holsapple was

incarcerated, and we find no evidence which would suggest that the

trial court's finding in this regard was plainly wrong.

Holsapple also argues he was merely an employee of Currier.

Thus, Currier was responsible for the poor workmanship, not

Holsapple. Nevertheless, the trial court found that Holsapple

represented himself to Frazier as Currier's agent and general

manager. Indeed, Holsapple was just as involved in the dealings

with Frazier, if not more involved, than Currier. Accordingly, we

find no error in the trial court's determination that Holsapple

was jointly responsible for the representations made, and the work

that was performed.

V. Fraudulent Intent

Holsapple further contends the Commonwealth failed to

establish evidence of his fraudulent intent at the time he

accepted the advance from Frazier. He argues that the contract

concerning the trusses states the amount received was for

materials, as well as labor, and that since there was no evidence

presented concerning the cost of labor, the court could not infer

his fraudulent intent in obtaining more money than the actual cost
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of the materials. Holsapple also contends there was no evidence

he bought the trusses or that he knew their actual cost.

"Whether a fraudulent intent existed at the time the advance

was obtained depends upon the circumstances of the case." Klink,

12 Va. App. at 819, 407 S.E.2d at 8. "The defendant's conduct and

representations must be examined in order to determine if a

fraudulent intent existed at the time." Id.

We are mindful, in resolving this issue, that "where the

Commonwealth's evidence as to an element of an offense is wholly

circumstantial, 'all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence.'" Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)

(quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,

567 (1976)). "However, '[w]hether the Commonwealth relies upon

either direct or circumstantial evidence, it is not required to

disprove every remote possibility of innocence, but is, instead,

required only to establish guilt of the accused to the exclusion

of a reasonable doubt.'" Cantrell v. Commonwealth, 7 Va. App.

269, 289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v.

Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986)).

Applying these principles to the evidence before us, we hold

the evidence was sufficient to prove beyond a reasonable doubt

that Holsapple violated Code § 18.2-200.1. Taken together,

Holsapple's representations and conduct demonstrated that he
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obtained the advanced funds with the fraudulent intent not to

complete the project. Indeed, contrary to Holsapple's argument,

the contract at issue states an estimate to "order one set of

house truss[es] . . . ." It also states that any excess will be

"refunded if other rafters are installed." Although the

pre-printed form indicates that the total requested includes labor

as well as materials, the line below that particular statement was

not filled in, thus indicating that the cost of labor was not

included in the advanced amount.

Further, the evidence established that Holsapple was the

individual who estimated the amounts necessary for the materials

and labor and that he bought all of the required materials.

Moreover, at the time Holsapple obtained the advance from Frazier,

he knew he would have to report to jail within a matter of days.

In addition, the trial court had before it evidence that Holsapple

demanded $1,100 from Frazier for work he had already performed and

had been paid in full. The trial court also had before it

evidence concerning the apparent misuse of the sliding glass door,

and the problems concerning the licensure of both he and Currier.

Thus, we find no error in the trial court's determination that the

circumstances, viewed as a whole, demonstrated Holsapple's

fraudulent intent at the time he obtained the advanced funds from

Frazier.

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 IV. Receipt of Funds

Finally, Holsapple maintains the trial court erred in finding

he received the advanced payments. However, viewed in the light

most favorable to the Commonwealth, the evidence demonstrated that

Holsapple at all times represented himself to be the agent and

general manager of Star Bright Construction and although he did

not physically accept the money from Frazier, he told her what

amounts would be needed and he was present when she made the

payments, even directing her to give the money to Currier. In

addition, it is clear that Holsapple had access to the funds, as

he paid the site workers with the cash. Thus, we find no error in

the trial court's determination that Holsapple received the funds

jointly with Currier, within the meaning of Code § 18.2-200.1.

See Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d 452,

457 (1961) ("We have, . . . in many cases reaffirmed the

proposition that if 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.").

For the foregoing reasons, we affirm the judgment of the

trial court.

Affirmed.

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Benton, J., with whom Fitzpatrick, C.J., and Elder, J., join,
dissenting.

In pertinent part, Code § 18.2-200.1 provides as follows:

If any person obtain from another an
advance of money, . . . with fraudulent
intent, upon a promise to perform
construction, removal, repair or improvement
of any building . . . 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.

(Emphasis added). Because it is a criminal statute, "Code

§ 18.2-200.1, must be strictly construed . . . [to mean that]

the notice requirement of the statute [is] a material element of

the offense charged." Jimenez v. Commonwealth, 241 Va. 244,

251, 402 S.E.2d 678, 681 (1991). Thus, to sustain a conviction,

the evidence must prove "beyond a reasonable doubt" that the

notice requirement of the statute was satisfied. Id.

The majority distinguishes the notice requirement of this

statute from a similar notice requirement in Code § 6.1-117 (now

Code § 18.2-183) on the basis that the latter statute expressly

requires that the certified or registered mail be "evidenced by

return receipt." I believe the majority's distinction is

nonessential and that the Supreme Court's holding in Rinkov v.

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

interprets the notice provision of Code § 6.1-117, is binding on

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our application of Code § 18.2-200.1 to this case. Therefore, I

dissent.

Code § 6.1-117 (now Code § 18.2-183) allowed proof of

refusal of a check for insufficient funds to be "prima facie

evidence of intent to defraud." The statute also provided that

"[n]otice mailed by certified . . . mail, evidenced by return

receipt, to the last known address of the maker . . . shall be

deemed sufficient . . . to notice having been received by the

maker." Code § 6.1-117 (now Code § 18.2-183). In Rinkov, the

Supreme Court construed the statute and held as follows:

Manifestly, the purpose of requiring the
notice to be sent by registered or certified
mail, and evidenced by a receipt, is to have
not only evidence of the required mailing to
the defendant, but also evidence that the
notice was either received in person by the
defendant (as would be shown by his
signature on the return receipt), or that
the letter did in fact reach the last known
address of the defendant and was there
accepted by someone at that address.
Otherwise there would be no reason for the
statute to require the notice be sent by
registered or certified mail and evidenced
by a return receipt.

213 Va. at 310, 191 S.E.2d at 733. Essentially, the Rinkov

holding explains that the purpose of requiring a return receipt

is to provide documentary proof that the notice was mailed and

was received by the accused or by someone at the accused's last

address. Id.

In the case of a prosecution under Code § 18.2-200.1, the

Commonwealth must prove the statutory elements of "fraudulent
- 21 -
intent . . . and fail[ing] or refus[ing] to perform [a prior]

promise, and also fail[ing] to substantially make good [an]

advance [of money]." Code § 18.2-200.1 (emphasis added).

Before the accused "shall be deemed guilty of the larceny" as

provided by the statute, the Commonwealth must prove beyond a

reasonable doubt the accused "fail[ed] to return such advance

within fifteen days of a request to do so sent by certified

mail, return receipt requested." Id. As the Supreme Court

observed in Rinkov, and as applicable here, the language of the

statute creates "a rule of evidence upon which the Commonwealth

may rely in facilitating proof of the fraudulent intent." 213

Va. at 309, 191 S.E.2d at 733. As the Court further noted in

Rinkov, a return receipt is not a necessity created by the

postal service for certified mailings but, rather, is a

statutory requirement that reflects a legislative "reason for

the statute." Id. at 310, 191 S.E.2d at 733. This statutory

requirement, that the request be "sent by certified mail, return

receipt requested," provides clear legislative intent that the

Commonwealth must prove by the return receipt that the request

was sent and that someone at the accused's last known address

received it. To prove the statutory requirement that the

accused "fail[ed] to return such advance within fifteen days of

a request to do so," Code § 18.2-200.1, and to invoke the

statutory presumption, the Commonwealth must prove, by means of

- 22 -
the return receipt, the mailing of that request. For that is

the method required by statute.

A long-standing principle of statutory interpretation holds

that words should be given their ordinary meaning unless

otherwise defined. See Grant v. Commonwealth, 223 Va. 680, 684,

292 S.E.2d 348, 350 (1982). It is generally understood that the

request of a return receipt for certified mail provides the

means to confirm by signatures that the intended recipient or

someone at the recipient's address actually received the item.

In this case, the Commonwealth only proved that Sandra Frazier

sent a request to Thomas Holsapple by certified mail return

receipt requested. The Commonwealth did not introduce a copy of

the return receipt, which would have evidenced both the mailing

and whether the letter was received. Under these circumstances,

I would hold, as the Court held in Rinkov, that where a statute

requires a mailing and a return receipt, the Commonwealth must

prove the return receipt so as

to have not only evidence of the required
mailing . . . but also evidence that the
notice was either received in person by the
defendant (as would be shown by his
signature on the return receipt), or that
the letter did in fact reach the last known
address of the defendant and was there
accepted by someone at that address.

213 Va. at 310, 191 S.E.2d at 733.

The Commonwealth presented no evidence that Holsapple

actually received the letter or that anyone received the letter

- 23 -
on Holsapple's behalf. Instead, the Commonwealth relies on

Robertson v. Commonwealth, 12 Va. App. 854, 856-57, 406 S.E.2d

417, 418-19 (1991), asserting that the law presumes that post

office clerks and prison officials have properly discharged

their official duties and, therefore, the burden was on

Holsapple to prove he did not receive the letter. In Robertson

and its predecessors, we applied this presumption in determining

whether, for evidentiary purposes, the chain of custody was

satisfied. See also Smith v. Commonwealth, 219 Va. 554, 559,

248 S.E.2d 805, 808 (1978). In determining such evidentiary

matters, we have held that the Commonwealth must prove by

"reasonable assurance" that the evidence presented at trial is

in the same condition as it was when obtained by the police.

Robertson, 12 Va. App. at 857, 406 S.E.2d at 419. Although this

presumption satisfies the "reasonable assurance" standard for

evidentiary matters, it is, however, insufficient to satisfy the

constitutional requirement that the Commonwealth prove beyond a

reasonable doubt each essential element of an offense. See

Jackson v. Virginia, 443 U.S. 307, 316 (1979); Powell v.

Commonwealth, 31 Va. App. 167, 172, 521 S.E.2d 787, 790 (1999)

(holding that "the burden is on the Commonwealth to

establish . . . element [of crime] by proof beyond a reasonable

doubt"). Therefore, I would hold that the Commonwealth failed

to prove beyond a reasonable doubt the notice requirement, which

is an element of the offense under Code § 18.2-200.1.
- 24 -
 In sum, I believe the majority's holding contradicts the

Supreme Court's holding in Rinkov. I would hold that Rinkov

binds our construction of the statutory required notice and,

therefore, I would hold that the evidence is insufficient to

invoke the terms of the statute "deem[ing]" Holsapple guilty of

larceny under Code § 18.2-200.1. Accordingly, I would reverse

the conviction and dismiss the indictment.

- 25 -
Felton, J., with whom Frank, J. joins, dissenting.

I join the dissent in its finding that the notice

requirement under Code § 18.2-200.1 was not satisfied by the

evidence presented in this case. In my view, however, I would

find that in addition to actual delivery to the addressee or to

a person at that address, proof of an attempt to deliver the

notice, and proof that, after that attempt, the mail remained

unclaimed would also satisfy the notice requirement.

Accordingly, I would reverse the conviction and dismiss the

indictment.

- 26 -
 Tuesday 3rd

September, 2002.

Thomas Michael Holsapple, Appellant,

against Record No. 3078-00-2
Circuit Court No. CR-13,771

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On July 23, 2002 came the appellant, by retained

counsel, and filed a petition praying that the Court set aside

the judgment rendered herein on July 9, 2002, and grant a

rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on July 9, 2002

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

the appellant

- 27 -
shall file with the clerk of this Court twelve additional copies

of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

- 28 -
 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia

THOMAS MICHAEL HOLSAPPLE
OPINION BY
v. Record No. 3078-00-2 JUDGE ROBERT J. HUMPHREYS
JULY 9, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Charles L. Weber, Jr., for appellant.

Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.

Thomas Michael Holsapple appeals his conviction, after a

bench trial, for fraudulently obtaining an advance of payment

for construction work to be performed in the future, in

violation of Code § 18.2-200.1. Holsapple contends the trial

court erred 1) in concluding that Code § 18.2-200.1 does not

require proof of actual notice; 2) in finding Holsapple was not

subject to a disability pursuant to Code §§ 8.01-9 and 53.1-223;

3) in finding the evidence sufficient to show that Holsapple

intentionally failed to perform the construction; 4) in finding

unsatisfactory performance amounted to a failure to perform

under Code § 18.2-200.1; 5) in finding the difference between

the contract price and cost of certain materials provided

sufficient evidence of the necessary fraudulent intent under
- 29 -
Code § 18.2-200.1; and, 6) in finding the evidence sufficient to

prove that Holsapple was the criminal agent where he was an

employee of the contractor and never received or possessed the

advanced funds. For the reasons that follow, we affirm

Holsapple's conviction.

I. Background

In reviewing criminal convictions, the evidence must be

viewed in the light most favorable to the Commonwealth. 4 "In so

doing we must 'discard the evidence of the accused in conflict

with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom.'" 5

So viewed, the evidence presented at trial established that

on June 8, 1993, the Virginia Department of Professional

Occupational Regulation permanently revoked Holsapple's license

as a building contractor in Virginia. However, Holsapple

continued to accept monetary advances to perform construction

work. Holsapple accepted one such advance from Sandra Frazier

and her brother-in-law. Frazier's home had burned in 1998.

Subsequently, she and Calvin Frazier, her brother-in-law,

4
Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740,
745 (1987) (citing Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975)).
5
Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45
(1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980)).

- 30 -
entered into a verbal agreement wherein Calvin agreed to install

a modular home in place of Frazier's burned home. On May 12,

1998, Calvin contracted with Doug Currier, doing business as

Star Bright Construction, to build a foundation for the

installation of the "double-wide" modular home. Holsapple, who

worked as manager and agent for Star Bright Construction, was

present when the contract was entered into, but Currier signed

the contract and was Calvin's contact during the course of the

project. Calvin made a $6,000 payment for the construction of

the foundation to Star Bright Construction on the date the

contract was signed. He paid the balance on June 2, 1998.

Although Calvin had paid for the work, in July or August of

1998, Holsapple approached Frazier and advised her that there

was an outstanding balance of $1,100 for his work on the

foundation. He told her that he would place a lien on her

property if she did not pay the outstanding amount. In

addition, he and Currier told her that the modular home Calvin

was installing was poorly constructed. They offered to take

over the construction, tear down the existing structure, and

provide her with a "stick-built" home. Frazier paid the $1,100

and agreed to consider their offer.

After receiving several phone calls from Currier and

Holsapple concerning their offer, Frazier finally contracted

with Currier on August 5, 1998. Both Holsapple and Currier

insisted that the deposit for the work be paid in cash.
- 31 -
Holsapple determined the amount needed was $15,000. Frazier

paid this amount to Currier that same day. Holsapple wrote

"received of Sandy Frazier $15,000 in cash contracts for home"

on the Proposal and Acceptance Form, which the two men used

during the course of their business.

On August 6, 1998, Holsapple and Currier demanded and

received an additional $9,000 from Frazier. Holsapple wrote the

receipt for the amount, and Currier signed it. On August 10,

1998, Holsapple and Currier requested and received another

$10,800 to install a well and a covered front porch on the home.

In addition, Frazier paid $7,500.05, on an uncertain date,

for roof trusses and block work. The Proposal and Acceptance

Form, signed by Currier, read, in relevant part, as follows:

WE HEREBY SUBMIT SPECIFICATIONS AND
ESTIMATES FOR:

I propose to order one set of House truss
[sic] 5/12 pitch for A [sic] house 26 ft[.]
wide by 50 ft[.] Long [sic] with 12 in[.]
over[-]hang on front and back of house[.]

Total Cost $3,745.00
Bal[.] on Block Work $1,150.00
Received in Cash $4,885

* * * * * * *

WE PROPOSE hereby to furnish material and
labor – complete in accordance with above
specifications for the sum of:

Bal[.] for Rafters [sic] will be Refunded
[sic] if other Rafters [sic] are
installed[.]

$_______________

- 32 -
 Payment to be made: Pd[.] Total [sic]
$7,500.05 in cash[.]

During these transactions, Frazier dealt primarily with

Holsapple. Holsapple always determined the amounts that were

due, but Frazier paid the monies to Currier at Holsapple's

direction. The workers on site were paid in cash by Holsapple.

Holsapple purchased the necessary materials, and Holsapple

generally did all of the driving, including transporting Currier

to and from the site.

By August 31, 1998, Holsapple was incarcerated at the

Albemarle-Charlottesville Regional Jail for a conviction on an

unrelated matter. 6 Holsapple actually left the job site on

August 15, 1998, when the trial judge in the unrelated matter

denied his request for work-release to continue working on the

project. Currier and other workers continued the construction

for a few months, until Currier was also incarcerated for a

conviction on an unrelated matter. At that point, construction

came to a halt, with the exception of a small amount of work

that Currier completed on the project once he was released from

his incarceration.

In October of 1998, the construction was inspected by

Albemarle County Building Inspector David Cook and by Frank

Marshall, a private contractor. Cook and Marshall determined

6
Holsapple presented evidence that he was released from
incarceration on July 2, 1999.
- 33 -
that the house was "uninhabitable," due to faulty workmanship.

Among other things, Marshall observed the roof trusses were not

secured properly. Marshall testified, "[t]hey probably had – I

probably pulled out ten nails out of twenty-six (26) trusses.

It wasn't secured to the walls."

On October 23, 1998, Frazier sent a letter to Holsapple at

the Albemarle-Charlottesville Regional Jail, demanding return of

her money. Frazier sent an identical letter to Currier. Both

letters were sent by certified mail, return receipt requested.

Neither Currier nor Holsapple returned the funds.

Based on these facts, the trial court found Holsapple

guilty of construction fraud, finding:

So I think this case boils down to the
thirty-seven hundred and forty five dollars
($3,745) for the trusses, because the eleven
hundred and fifty dollars ($1,150) appears
from the evidence to be a representation of
money due for work that was performed prior
to August 5th. I mean Mr. Frazier testified
that was completed by June 2nd or something
of that nature. So, I don't see where the
eleven fifty is for future work to be
performed, which is under this
statute. . . . So it boils down to the
thirty-seven forty-five. At the time that
Mr. Holsapple said to Ms. Frazier, and this
is sometime early on in the contractual
relations with the parties on or about
August 5, 6, or 7, that I need thirty-seven
forty-five for trusses, and he writes it out
in his own handwriting as to what kind of
trusses he needs, length, width, etcetera,
and the price is thirty-seven forty-five.
Not some round figure, but thirty-seven
forty-five. And then if other trusses are
used or other rafters used, there will be a
refund. . . . He told Ms. Frazier how much
- 34 -
 he needed, he was present when the money was
attempted to be handed to him and he told
Mr. Currier who took it, he is represented
as the agent of the company and general
manager and the Court finds he was the
person under the statute who received the
money jointly with Mr. Currier. . . . I'm
finding that the thirty-seven forty-five was
a fraudulent intent representation of I need
this money and it was only nine eighty-three
that was paid. There was a promise to
perform construction in the future. There
was a failure to perform the promise, he
failed to refund the money. He had an
opportunity to do it between August 6th and
August 31st. The truss work was not
performed in a satisfactory manner, it was
only partially performed. . . . And on the
question of failure to return, there was a
demand for the return of money through the
letter, it was not returned within fifteen
(15) days. The letter was sent by certified
mail, return receipt. I understand
[Holsapple's] argument, but the letter was
addressed to Starbright Construction and Mr.
Holsapple was agent and general manager and
it was sent to the last known address, which
was the complex. There is no evidence he
was in jail on a felony charge so that he
was a person under a disability for having
been convicted of a felony. And I find that
element of the statute has been complied
with, so I find him guilty as charged under
the indictment.

II. Notice

Code § 18.2-200.1 provides as follows:

If any person obtain from another an advance
of money, merchandise or other thing, of
value, with fraudulent intent, upon a
promise to perform construction, removal,
repair or improvement of any building or
structure permanently annexed to real
property, or any other improvements to such
real property, including horticulture,
nursery or forest products, and fail or
refuse to perform such promise, and also
- 35 -
 fail to substantially make good such
advance, he shall be deemed guilty of the
larceny of such money, merchandise or other
thing 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.

As we held in Klink v. Commonwealth, 12 Va. App. 815, 407 S.E.2d

5 (1991), this statute requires proof of the following elements:

(1) obtaining an advance of money from
another person, (2) a fraudulent intent at
the time the advance is obtained, (3) a
promise to perform construction or
improvement involving real property, (4) a
failure to perform the promise, and (5) a
failure to return the advance "within
fifteen days of a request to do so by
certified mail" to the defendant's last
known address or his address listed in the
contract. 7

Holsapple first contends the Commonwealth failed to prove

he received notice of Frazier's letter demanding repayment of

the funds advanced. However, Holsapple does not contest the

Commonwealth's evidence that Frazier mailed the notice, by

certified mail, return receipt requested, to Holsapple's last

known address.

We recognize that "[a] criminal statute, such as Code

§ 18.2-200.1, must be strictly construed" against the

Commonwealth. 8 We further recognize that "the notice requirement

7
12 Va. App. at 818, 407 S.E.2d at 7.
8
Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681
(1991).
- 36 -
 9
of the statute [is] material." Nevertheless, the plain

language of the statute simply does not require a showing of

actual receipt.

Holsapple argues, relying on Rinkov v. Commonwealth, 213

Va. 307, 191 S.E.2d 731 (1972), that "the Commonwealth is

required to produce evidence not only of the mailing [of the

notice], but also of its receipt." The Supreme Court of

Virginia indeed held in Rinkov that, in order for the statutory

presumption of intent to defraud to arise under the bad check

statute, Code § 18.2-183,

the notice to be given defendant must have
been mailed by certified or registered mail
and evidenced by return receipt. Manifestly
the purpose of requiring the notice to be
sent by registered or certified mail, and
evidenced by a receipt, is to have not only
evidence of the required mailing to the
defendant, but also evidence that the notice
was either received in person by the
defendant (as would be shown by his
signature on the return receipt), or that
the letter did in fact reach the last known
address of the defendant and was there
accepted by someone at that address.
Otherwise there would be no reason for the
statute to require the notice be sent by
registered or certified mail and evidenced
by a return receipt. 10

However, Code § 6.1-117 (now Code § 18.2-183) specifically

required that notice be "mailed by certified or registered mail,

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

9
Id.
10
213 Va. at 310, 191 S.E.2d at 733 (emphasis in original).
- 37 -
maker." In fact, the evidence in Rinkov's trial proved that

although the notice was properly mailed, it was returned as

unclaimed. 11 Thus, Rinkov is readily distinguishable from the

case at bar. The statute here requires nothing more than proof

that the notice was "sent by certified mail, return receipt

requested, to [defendant's] last known address or the address

listed in the contract." 12 As the Supreme Court of Virginia

stated in Jimenez:

We think it clear that the General Assembly
meant what it said, i.e., that a person
accused of violating the statute cannot be
convicted unless the evidence proves beyond
a reasonable doubt, inter alia, that the
accused "fail[ed] to return [the] advance
within fifteen days of a request to do so,"
and that the request was "sent by certified
mail, return receipt requested." 13

Indeed, "[w]here a statute is unambiguous, the plain

meaning is to be accepted without resort to the rules of

statutory interpretation." 14 "'Courts are not permitted to

rewrite statutes. This is a legislative function. The manifest

intention of the legislature, clearly disclosed by its language,

must be applied.'" 15 If the legislature intended to require a

11
Rinkov, 213 Va. at 308, 191 S.E.2d at 732.
12
Code § 18.2-200.1.
13
Jimenez, 241 Va. at 251, 402 S.E.2d at 681 (holding that
actual notice of request does not satisfy the requirements of
Code § 18.2-200.1).
14
Last v. Virginia State Bd. of Med., 14 Va. App. 906, 910, 421
S.E.2d 201, 205 (1992).
15
Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396
- 38 -
showing of actual receipt as it did in Code § 18.2-183, it

presumably would have used language to do so. Accordingly, we

find that the trial judge had sufficient evidence to prove

beyond a reasonable doubt that Frazier requested return of her

advanced payments.

III. Appointment of a Guardian ad Litem or Committee

Holsapple next contends the trial court erred in finding he

was not a "person under a disability" as defined by Code

§ 8.01-2(6)(a), and as such, that Holsapple was not entitled to

an appointment of a guardian ad litem pursuant to Code § 8.01-9,

or a committee, pursuant to Code § 53.1-223, once Frazier

forwarded the notice to him while he was incarcerated. 16 Thus,

S.E.2d 672, 674 (1990) (quoting Anderson v. Commonwealth, 182
Va. 560, 566, 29 S.E.2d 838, 841 (1944)).
16
Code § 8.01-9 provided as follows, in relevant part, at the
time Frazier sent the notice:
A. A suit wherein a person under a
disability is a party defendant shall not be
stayed because of such disability, but the
court in which the suit is pending, or the
clerk thereof, shall appoint a discreet and
competent attorney-at-law as guardian ad
litem to such defendant, whether the
defendant has been served with process or
not. . . .

B. Notwithstanding the provisions of
subsection A or the provisions of any other
law to the contrary, in any suit wherein a
person under a disability is a party
defendant and is represented by an
attorney-at-law duly licensed to practice in
this Commonwealth, who shall have entered of
record an appearance for such person, no
guardian ad litem need be appointed for such
- 39 -
Holsapple argues he was denied fundamental due process rights as

he was not properly notified of the nature of the "suit" against

him. However, Holsapple bases his claim on his contention that

the trial court erroneously found Holsapple's incarceration was

not due to a felony conviction. Indeed, the trial court held

that "there [was] no evidence [Holsapple] was in jail on a

felony charge so that he was a person under a disability for

having been convicted of a felony." The record demonstrates

Holsapple failed to introduce any evidence concerning the nature

person unless the court determines that the
interests of justice require such
appointment; or unless a statute applicable
to such suit expressly requires an answer to
be filed by a guardian ad litem. The court
may, in its discretion, appoint the attorney
of record for the person under a disability
as his guardian ad litem, in which event the
attorney shall perform all the duties and
functions of guardian ad litem.

Any judgment or decree rendered by any court
against a person under a disability without
a guardian ad litem, but in compliance with
the provisions of this subsection B, shall
be as valid as if the guardian ad litem had
been appointed.

Code § 53.1-223 provided:
No action or suit on any claim or demand,
except actions to establish a parent and
child relationship between a child and a
prisoner and actions to establish a
prisoner's child support obligation, shall
be instituted against a prisoner after
judgment of conviction and while he is
incarcerated, except through his committee.

- 40 -
of his 1998-1999 incarceration at trial. 17 Furthermore, these

sections apply only to civil proceedings. 18

Accordingly, we find no error in the trial court's

determination that there was no evidence to establish Holsapple

was a "person under a disability," or that he was not entitled

to an appointment of a guardian ad litem, or a committee, for

purposes of notice.

IV. Failure to Perform

Holsapple next argues that the trial court erred in finding

he failed to complete the construction as promised. Holsapple

contends the trial court erred in finding that poor workmanship

amounted to a "failure to perform" under the statute. Further,

he states that the trial court erred in finding the workmanship

was poor because it failed to comply with building codes. He

also argues that Currier was the individual responsible for the

poor workmanship, as opposed to him, as he was incarcerated at

the time the work was performed and in any event, he was merely

Currier's employee. In the alternative, Holsapple contends he

was "legally justified" in failing to complete the construction

on the truss work because he was sentenced to prison in August

1998, and by August 15, 1998, the trial court had denied his

17
Holsapple's unsuccessful attempt to re-open the case to submit
evidence establishing his disability was unsuccessful, and the
conviction order he attached to his Amended Motion to Set Aside
the Verdict does not constitute evidence.
18
See Code § 8.01-2.
- 41 -
request for work-release to complete the construction.

We find no merit in Holsapple's argument that the trial

court's finding, "Holsapple failed to perform on the promise

because the workmanship was unsatisfactory seems inconsistent

with the plain language of the statutes." Indeed, we have found

[i]t 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." 19

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 evidence demonstrated that the truss work was

done so poorly that the home was simply not safe to live in.

Accordingly, 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.

19
Rader v. Commonwealth, 15 Va. App. 325, 332, 423 S.E.2d 207,
212 (1992) (emphasis added).
- 42 -
 Further, we find no error in the trial court's

consideration of building code violations in determining that

the workmanship was faulty. "Evidence which 'tends to cast any

light upon the subject of the inquiry' is relevant." 20 "The test

establishing relevance is not whether the proposed evidence

conclusively proves a fact, but whether it has any tendency to

establish a fact at issue." 21 "Admissibility of evidence is an

issue left to the discretion of the trial court, and unless the

appellant proves an abuse of discretion, no error will lie." 22

In this case, evidence of the building code violations was

relevant and probative because it demonstrated the poor quality

of the workmanship. Therefore, the violations provided

circumstantial evidence that the fact finder could consider to

prove the necessary elements under the statute, and the trial

court did not abuse its discretion in admitting such evidence.

Holsapple next contends he was not responsible for the work

on the trusses, because he was incarcerated at the time the

trusses were installed. However, Frazier testified that the

"trusses were on" and that the work was "pretty far along" at

the point Holsapple left the site due to his incarceration. The

fact that Robert Johnson, an employee of Currier's who worked on

20
Cash v. Commonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771
(1988) (citations omitted).
21
Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203
(1988).
22
Rader, 15 Va. App. at 331, 423 S.E.2d at 211.
- 43 -
construction of the home, testified that the roof was not on

when Holsapple left, is of no consequence. Indeed, it is within

the province of the trial court to "evaluate[] the credibility

of witnesses, resolve[] the conflicts in their testimony, and

weigh[] the evidence as a whole. Its finding is entitled to the

same weight on appeal as that accorded a factual finding by a

jury and will not be disturbed unless it is plainly wrong." 23

Here, the trial court believed Frazier's testimony that the

construction involving the trusses was complete at the time

Holsapple was incarcerated, and we find no evidence which would

suggest that the trial court's finding in this regard was

plainly wrong.

Holsapple also argues he was merely an employee of Currier.

Thus, Currier was responsible for the poor workmanship, not

Holsapple. Nevertheless, the trial court found that Holsapple

represented himself to Frazier as Currier's agent and general

manager. Indeed, Holsapple was just as involved in the dealings

with Frazier, if not more involved, than Currier. Accordingly,

we find no error in the trial court's determination that

Holsapple was jointly responsible for the representations made,

and the work that was performed.

23
Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371,
381 (1984).
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 V. Fraudulent Intent

Holsapple further contends the Commonwealth failed to

establish evidence of his fraudulent intent at the time he

accepted the advance from Frazier. He argues that the contract

concerning the trusses states the amount received was for

materials, as well as labor, and that since there was no

evidence presented concerning the cost of labor, the court could

not infer his fraudulent intent in obtaining more money than the

actual cost of the materials. Holsapple also contends there was

no evidence he bought the trusses or that he knew their actual

cost.

"Whether a fraudulent intent existed at the time the

advance was obtained depends upon the circumstances of the

case." 24 "The defendant's conduct and representations must be

examined in order to determine if a fraudulent intent existed at

the time." 25

We are mindful, in resolving this issue, that "where the

Commonwealth's evidence as to an element of an offense is wholly

circumstantial, 'all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'" 26 "However,

24
Klink, 12 Va. App. at 819, 407 S.E.2d at 8.
25
Id.
26
Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551,
553 (1987) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228
S.E.2d 563, 567 (1976)).
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'[w]hether the Commonwealth relies upon either direct or

circumstantial evidence, it is not required to disprove every

remote possibility of innocence, but is, instead, required only

to establish guilt of the accused to the exclusion of a

reasonable doubt.'" 27

Applying these principles to the evidence before us, we

hold the evidence was sufficient to prove beyond a reasonable

doubt that Holsapple violated Code § 18.2-200.1. Taken

together, Holsapple's representations and conduct demonstrated

that he obtained the advanced funds with the fraudulent intent

not to complete the project. Indeed, contrary to Holsapple's

argument, the contract at issue states an estimate to "order one

set of house truss[es] . . . ." It also states that any excess

will be "refunded if other rafters are installed." Although the

pre-printed form indicates that the total requested includes

labor as well as materials, the line below that particular

statement was not filled in, thus indicating that the cost of

labor was not included in the advanced amount.

Further, the evidence established that Holsapple was the

individual who estimated the amounts necessary for the materials

and labor and that he bought all of the required materials.

Moreover, at the time Holsapple obtained the advance from

27
Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328,
338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va. App. 523,
526-27, 351 S.E.2d 598, 600 (1986)).
- 46 -
Frazier, he knew he would have to report to jail within a matter

of days. In addition, the trial court had before it evidence

that Holsapple demanded $1,100 from Frazier for work he had

already performed and had been paid in full. The trial court

also had before it evidence concerning the apparent misuse of

the sliding glass door, and the problems concerning the

licensure of both he and Currier. Thus, we find no error in the

trial court's determination that the circumstances, viewed as a

whole, demonstrated Holsapple's fraudulent intent at the time he

obtained the advanced funds from Frazier.

VI. Receipt of Funds

Finally, Holsapple maintains the trial court erred in

finding he received the advanced payments. However, viewed in

the light most favorable to the Commonwealth, the evidence

demonstrated that Holsapple at all times represented himself to

be the agent and general manager of Star Bright Construction and

although he did not physically accept the money from Frazier, he

told her what amounts would be needed and he was present when

she made the payments, even directing her to give the money to

Currier. In addition, it is clear that Holsapple had access to

the funds, as he paid the site workers with the cash. Thus, we

find no error in the trial court's determination that Holsapple

received the funds jointly with Currier, within the meaning of

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Code § 18.2-200.1. 28

For the foregoing reasons, we affirm the judgment of the

trial court.

Affirmed.

28
See Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d
452, 457 (1961) ("We have, . . . in many cases reaffirmed the
proposition that if 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.").

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Benton, J., dissenting.

In pertinent part, Code § 18.2-200.1 provides as follows:

If any person obtain from another an
advance of money, . . . with fraudulent
intent, upon a promise to perform
construction, removal, repair or improvement
of any building . . . 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.

(Emphasis added). Because it is a criminal statute, "Code

§ 18.2-200.1, must be strictly construed . . . [to mean that]

the notice requirement of the statute [is] a material element of

the offense charged." Jimenez v. Commonwealth, 241 Va. 244,

251, 402 S.E.2d 678, 681 (1991). Thus, to sustain a conviction,

the evidence must prove "beyond a reasonable doubt" that the

notice requirement of the statute was satisfied. Id.

The majority distinguishes the notice requirement of this

statute from the similar notice requirement in Code § 6.1-117

(now Code § 18.2-183) on the basis that the latter statute

specifically requires that the certified or registered mail be

"evidenced by return receipt." I believe the majority's

distinction is nonessential and that the Supreme Court's holding

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

interpreting the notice provision of Code § 6.1-117, is binding

- 49 -
on our application of Code § 18.2-200.1 to the circumstances of

this case. Therefore, I dissent.

In Rinkov, the Supreme Court held as follows:

Manifestly, the purpose of requiring the
notice to be sent by registered or certified
mail, and evidenced by a receipt, is to have
not only evidence of the required mailing to
the defendant, but also evidence that the
notice was either received in person by the
defendant (as would be shown by his
signature on the return receipt), or that
the letter did in fact reach the last known
address of the defendant and was there
accepted by someone at that address.
Otherwise there would be no reason for the
statute to require the notice be sent by
registered or certified mail and evidenced
by a return receipt.

213 Va. at 310, 191 S.E.2d at 733. Essentially, the Rinkov

holding explains that the purpose of requiring a return receipt

is to provide proof that the notice was received by the accused

or by someone at the accused's last address. Id.

In the case of a prosecution under Code § 18.2-200.1, the

Commonwealth must prove the statutory elements of "fraudulent

intent . . . and fail[ing] or refus[ing] to perform [a prior]

promise, and also fail[ing] to substantially make good [an]

advance [of money]." Id. (emphasis added). In addition,

however, the Commonwealth must prove the accused "fail[ed] to

return such advance within fifteen days of a request to do so

sent by certified mail, return receipt requested." Id. As the

Court ruled in Rinkov, a certified mailing alone would provide

proof that the item was mailed. The statutory requirement,
- 50 -
however, that the request be "sent by certified mail, return

receipt requested" provides clear legislative intent that the

Commonwealth prove the request was sent and received by someone

at the accused's last known address. Receipt of that request in

the manner provided by statute is necessary to prove the

statutory requirement that the accused "fail[ed] to return such

advance within fifteen days of a request to do so." Code

§ 18.2-200.1.

A long-standing principle of statutory interpretation holds

that words should be given their ordinary meaning unless

otherwise defined. See Grant v. Commonwealth, 223 Va. 680, 684,

292 S.E.2d 348, 350 (1982). It is generally understood that the

request of a return receipt for certified mail provides the

means to confirm by signatures that the intended recipient or

someone at the recipient's address actually received the item.

Therefore, I would hold, as the Court held in Rinkov, that where

a statute requires a mailing and a return receipt, the

Commonwealth must prove "that the notice was either received in

person by the defendant (as would be shown by his signature on

the return receipt), or that the letter did in fact reach the

last known address of the defendant and was there accepted by

someone at that address." 213 Va. at 310, 191 S.E.2d at 733.

The Commonwealth's evidence proved only that Sandra Frazier

sent a request to Thomas Holsapple by certified mail return

receipt requested. The Commonwealth did not introduce a copy of
- 51 -
the return receipt, which would have evidenced whether the

letter was received. The Commonwealth also presented no other

evidence that Holsapple actually received the letter or that

anyone received the letter on Holsapple's behalf. Instead, the

Commonwealth relies on Robertson v. Commonwealth, 12 Va. App.

854, 856-57, 406 S.E.2d 417, 418-19 (1991), asserting that the

law presumes that post office clerks and prison officials

properly carry out their official duties and, therefore, that

the burden was on Holsapple to prove that he did not receive the

letter.

In Robertson and its predecessors, we applied this

presumption in determining whether, for evidentiary purposes,

the chain of custody was satisfied. See also Smith v.

Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978). In

determining such evidentiary matters, we have held that the

Commonwealth must prove only by "reasonable assurance" that the

evidence presented at trial is in the same condition as it was

when obtained by the police. Robertson, 12 Va. App. at 857, 406

S.E.2d at 419. This presumption, which satisfies the

"reasonable assurance" standard for evidentiary matters, is

insufficient, however, to satisfy the constitutional requirement

that the Commonwealth prove beyond a reasonable doubt each

essential element of an offense. See Jackson v. Virginia, 443

U.S. 307, 316 (1979); Powell v. Commonwealth, 31 Va. App. 167,

172, 521 S.E.2d 787, 790 (1999) (holding that "the burden is on
- 52 -
the Commonwealth to establish . . . element [of crime] by proof

beyond a reasonable doubt"). Therefore, I would hold that the

Commonwealth failed to prove beyond a reasonable doubt the

notice requirement, which is an element of the offense.

In sum, I believe the majority's holding that the plain

language of the statute does not require a showing of actual

receipt of the request contradicts the Supreme Court's holding

in Rinkov. I would hold that Rinkov binds our construction of

the statutory required notice and, therefore, I would hold that

the statutory requirements were not met. I would further hold

that the evidence is insufficient to convict Holsapple of

violating Code § 18.2-200.1 without proof that Holsapple or

someone at his last known address received the letter.

Accordingly, I would reverse the conviction and dismiss the

indictment.

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