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.
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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)).
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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
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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,
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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
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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
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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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