COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
WALTER SCOTT BAUGH
MEMORANDUM OPINION * BY
v. Record No. 0348-00-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
J. Thompson Cravens (Jason P. Livingston; J.
Thompson Cravens & Associates, on brief), for
appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Walter Scott Baugh was convicted in a bench trial of failing to
perform promised construction in return for an advance of money
in violation of Code § 18.2-200.1. On appeal, he contends (1)
the evidence was insufficient to support his conviction and (2)
the letter requesting repayment of the advance failed to comport
with the notice requirements of Code § 18.2-200.1. We disagree
and affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. SUFFICIENCY OF THE EVIDENCE
Baugh first contends the evidence was insufficient to
sustain his conviction of violating Code § 18.2-200.1. The
Commonwealth, he maintains, failed to prove beyond a reasonable
doubt that he had fraudulent intent at the time he obtained the
second advance. We disagree.
When the sufficiency of the evidence is challenged on
appeal, we review the evidence "in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.
248, 250, 356 S.E.2d 443, 444 (1987). "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." Watkins v. Commonwealth, 26 Va. App. 335,
349, 494 S.E.2d 859, 866 (1998). We will not disturb a
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985).
"The Commonwealth bears the burden of 'proving beyond a
reasonable doubt each and every constituent element of a crime
before an accused may stand convicted of that particular
offense.'" Bruce v. Commonwealth, 22 Va. App. 264, 268, 469
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S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.
524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.
App. 371, 506 S.E.2d 318 (1998). Thus, to convict Baugh of
violating Code § 18.2-200.1, 1 the Commonwealth had to prove
beyond a reasonable doubt the following five 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.
Klink v. Commonwealth, 12 Va. App. 815, 818, 407 S.E.2d 5, 7
(1991) (quoting Code § 18.2-200.1). Baugh claims the
Commonwealth's evidence was insufficient to prove that he had a
fraudulent intent at the time he obtained the second advance.
1
Code § 18.2-200.1 provides, in pertinent part, as follows:
If any person obtain from another an
advance of money . . . with fraudulent
intent, upon a promise to perform
construction . . . or improvement of any
building or structure permanently annexed to
real property . . . and fail or refuse to
perform such promise, and also fail to
substantially make good such advance, he
shall be deemed guilty of the larceny of
such money . . . if he fails to return such
advance within fifteen days of a request to
do so sent by certified mail, return receipt
requested, to his last known address or to
the address listed in the contract.
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"Whether a fraudulent intent existed at the time the
advance was obtained depends upon the circumstances of the
case." Id. 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. "A defendant's use
of false statements is a significant factor that tends to prove
fraudulent intent in construction fraud." Rader v.
Commonwealth, 15 Va. App. 325, 330, 423 S.E.2d 207, 211 (1992).
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 that the evidence was sufficient to prove beyond a
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reasonable doubt that Baugh violated Code § 18.2-200.1. Taken
together, Baugh's representations and conduct demonstrated that
he obtained the second advance with the fraudulent intent not to
complete the project.
Viewed in the light most favorable to the Commonwealth, the
evidence established that, on February 13, 1999, Baugh entered
into a contract with Robert Jorgenson to build a garage at
Jorgenson's home for $14,575. The contract provided for a down
payment of $4,575 and for two additional payments of $5,000
each. The contract was silent as to the completion date of the
project, the dates or conditions upon which the second and third
installments were due, and any escrow requirements for those
payments. Upon execution of the contract, Jorgenson gave Baugh
a check for $4,500 as a down payment. Baugh told Jorgenson that
"he should be finished with the garage by the end of March."
On February 24, 1999, after completing the foundation of
the garage, Baugh asked for the second installment payment,
telling Jorgenson that "he had the trusses and the lumber
ordered and needed another check." According to Jorgenson,
Baugh specifically indicated that "he needed this second check
to pay for the materials that he had ordered." Based on that
representation, Jorgenson wrote Baugh a check for $5,175. 2
2
This figure represents the $5,000 second installment
provided for in the contract, $75 owed from the first
installment, and an additional $100 for "trim roof on front
overhang."
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Jorgenson was unaware at the time that Baugh was working on
other jobs.
After obtaining the second installment, Baugh performed no
work on the garage. Shortly after receiving the check, he spent
approximately $2,300 of the $5,175 on purchases unrelated to the
construction of Jorgenson's garage and ultimately spent none of
the $5,175 on the garage project. No material, other than the
initial material for the foundation, was ever delivered to the
job site. At trial, Baugh was unable to present any
documentation showing that he had in fact ordered the trusses or
lumber.
Additionally, Jorgenson had difficulty contacting Baugh
after payment of the second installment. He attempted to reach
Baugh by telephone several times. The first "couple of times"
he left a message on Baugh's answering machine, but Baugh did
not return his calls. Eventually, the machine stopped answering
calls altogether.
On March 28, 1999, Jorgenson wrote a letter to Baugh asking
him to call or stop by his house to discuss "what's going on"
with the garage. He placed the letter in Baugh's mailbox and
mailed him a copy. Shortly thereafter, Baugh met with Jorgenson
and told him he would resume work on the garage on or before
April 14, the material would be delivered April 14, and the
garage would be completed "two weeks or so" after that.
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On April 14, 1999, Jorgenson became "very concerned"
because work had not resumed on the garage, the material had not
been delivered, and Baugh had not contacted him since their
meeting some two weeks earlier. When Baugh eventually called
late that day to tell Jorgenson that he had been hospitalized
for eight days with appendicitis, Jorgenson informed him that he
did not want him on the job anymore because he was "not
dependable." According to Jorgenson, Baugh did not, contrary to
Baugh's claim, tell him during that call that he had arranged
for one of his workers to complete the garage.
On April 26, 1999, Jorgenson's attorney sent a certified
letter, return receipt requested, to the address of Baugh's
construction company listed in the contract requesting a full
refund within fifteen days. The letter was returned unclaimed
on May 12, 1999.
From this evidence, the trial court, as fact finder, could
have concluded beyond a reasonable doubt that Baugh's
representations were falsely made and intended to defraud
Jorgenson. Not only did Baugh tell Jorgenson that he needed the
second installment for the specific purpose of purchasing
"ordered" material that was never delivered, he spent none of
the second installment on that material or the construction of
the garage. See Rader, 15 Va. App. at 330, 423 S.E.2d at 210-11
(holding that defendant's request for an advance for the stated
purpose of buying building material that was never ordered and
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defendant's failure to apply any of the advance so requested
toward work on the project were factors from which fact finder
could infer fraudulent intent). Furthermore, once he received
the second installment, Baugh failed in all but one instance to
respond to Jorgenson's attempts to contact him and generally did
not keep Jorgenson informed about when work on the garage would
resume or the reasons for the work stoppage and delays. See id.
(holding that defendant's general lack of communication with
client about project's problems was further evidence of his
fraudulent intent). These circumstances, we conclude, excluded
every reasonable hypothesis of innocence and were sufficient to
prove beyond a reasonable doubt Baugh's fraudulent intent.
Furthermore, the trial court's judgment was not plainly wrong.
Although Baugh denied that he had any intent to defraud
Jorgenson and disputed much of Jorgenson's testimony, the trial
judge was not required to accept his explanations and disbelieve
Jorgenson. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d
608, 610 (1981). "The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact[ ]finder's
determination." Keyes v. City of Virginia Beach, 16 Va. App.
198, 199, 428 S.E.2d 766, 767 (1993). Here, the trial judge
expressly stated that he found Jorgenson to be "a very credible
witness" and "more credible than" Baugh and his witness.
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II. REQUEST FOR RETURN OF ADVANCE
Appellant also contends the letter sent to him on April 26,
1999 by Jorgenson's attorney was deficient because it requested
a full refund rather than a refund specifically of the second
installment. We disagree.
"[A] person accused of violating [Code § 18.2-200.1] cannot
be convicted unless the evidence proves beyond a reasonable
doubt . . . 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 v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681
(1991) (quoting Code § 18.2-200.1).
Here, Jorgenson did all that the statute required. He
sent, through his attorney, a "request" letter by certified
mail, return receipt requested, to Baugh's address listed in the
contract. In that letter, he demanded that Baugh return "the
$9,675.00 paid to [Baugh] for the [garage] project." The letter
lists the two advances made by Jorgenson, including "the
additional installment of $5,175.00 on February 24, 1999." The
letter further states as follows:
You have failed or refused to perform
the promised construction and have failed to
make good such advances. Further, the
supplies that were supposedly ordered never
were delivered.
The fact that Jorgenson demanded return of the full amount
advanced to Baugh does not, in our view, invalidate or render
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deficient his request for the return of the $5,175 second
installment. The letter clearly and effectively informs Baugh
that, inter alia, the second advance was to be returned to
Jorgenson within fifteen days. Neither the statute nor case law
requires more. Accordingly, we hold the letter sent by
Jorgenson complied with the statute and provided valid notice to
Baugh.
For these reasons, we affirm Baugh's conviction.
Affirmed.
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