John Kurt Sensabaugh v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia

JOHN KURT SENSABAUGH
MEMORANDUM OPINION * BY
v. Record No. 2811-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NELSON COUNTY
J. Michael Gamble, Judge
Bruce K. Tyler for appellant.

Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

John Kurt Sensabaugh (appellant) was convicted in a bench

trial of failing to carry out a promise to perform construction

in return for an advance of money in violation of Code

§ 18.2-200.1. Appellant contends the language used in the notice

did not comply with the statute and, therefore, the Commonwealth

failed to prove an essential element of the crime. Additionally,

he argues that the evidence was insufficient to support the

conviction. Finding no error, we affirm.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
S.E.2d 677, 678 (1997). So viewed, the evidence established that

appellant entered into a written contract with David Copson

(Copson) to construct a building. The contract estimated a

starting date of January 16, 1995, and a completion date of

February 28, 1995, and required Copson to make four payments as

follows:
Upon signing contract, a deposit of $4,800.00
is to be made. The deposit covers rough-in
plumbing, stone, concrete, and excavating. A
second draw of $9,930.00 is to be made for
all rough framing, roofing, windows,
shingles, interior rough-in plumbing and
electrical (Material to be delivered within
48 hours of second draw). A third draw of
$7,900 is to be made for all finish work.
The balance upon completion and payable upon
completion is $5,332.00.

When the contract was first negotiated, appellant "told"

Copson to get the building permit. Copson filed for a permit on

January 9, 1995, and paid appellant the first advance on January

16, 1995, when the contract was signed. The building permit

could not be issued until appellant provided proof of a properly

secured contractor's license, which did not occur until April 25,

1995, almost two months after the building was supposed to be

completed.

On April 6, 1995, Copson paid the second draw of $9,930. In

late May of 1995, even though the work required under the second

draw/advance was incomplete, appellant requested payment of the

third draw. Copson testified as follows:
Mr. Sensabaugh told me it was time for the
third draw. I was unwilling to make the
payment all at once because the work had gone

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 so slowly, so I wanted to stretch it out a
little bit, so I gave him partial payment.

As a result, Copson wrote three checks to appellant: one for

$3,500 on May 22, 1995; one for $2,600 on May 30, 1995; and one

for $1,800 on June 2, 1995. 1

"[W]ithin a week or so" of Copson paying the balance of the

third draw, appellant's workers "packed up all . . . their tools

and left the job." At that point, "there was still some

electrical work to be done, there was the sewer connections to be

made," as well as insulation, sheetrock, and finished plumbing.

Moreover, "the framings weren't even done for" the skylights that

were supposed to be installed in the roof. Although the toilet

bowl had been delivered, the sinks and heat pump had not.

Appellant also failed to deliver the skylights, electrical

lighting, sheetrock, gutters, linoleum flooring, interior window

frames, and insulation.
Copson attempted to contact appellant to determine when

appellant and his workers were going to return to the job site to

1
On May 25, 1995, three days after Copson paid appellant the
first installment on the third draw, the parties prepared and
executed a document entitled, "Extras." In it, the parties
agreed upon a price for additional work, including a second floor
loft, an extra window, and a counter with a double sink. The
total amount for the "extras" was $1,514.55. Copson wrote
appellant a check for $1,000 and agreed to pay the balance with
the fourth draw upon completion of the building. Copson
testified that he wanted to make sure of any additional expenses,
so he asked appellant about "any other extras" or charges.
Appellant "told [him] that there was a few things that he had
done that normally he would bill for, but he wasn't going to bill
[Copson] for them because he was so far behind schedule . . . ."

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finish the building. Copson telephoned "several times a week,

sometimes every day, ten, twenty times probably." On June 26,

1995, Copson received a letter from appellant demanding that

Copson pay the fourth draw and additional money for seventeen

listed "extras" before any work could be completed.

On July 1, 1995, Copson responded in writing to appellant's

letter. Although he refused to pay the final draw, Copson

indicated that he would pay appellant for various "extra" items,

as they had previously discussed. Over the next month, the

parties "negotiated back and forth," and they eventually reached

an agreement. On August 14, 1995, Copson's attorney sent

appellant a copy of a proposed agreement to sign and return.

Copson never received a response from appellant, and his "phone

calls weren't returned." Appellant failed to do any further work

or have any of the finishing material delivered.
On October 17, 1996, Copson mailed a certified letter to

appellant, return receipt requested. The letter was addressed to

East Coast Property & Development, 321 Isle Avenue, Waynesboro,

Virginia, 22980, the same name and address printed on the

letterhead of the contract signed by the parties. In the first

paragraph, Copson gave "notice that [their] contract . . . is

canceled." The second and third paragraphs demanded repayment of

portions of the first two draws due to incomplete and/or

unsatisfactory work. The fourth paragraph addressed the

performance of "extra" work. In the fifth paragraph of the

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letter, Copson wrote:
The third draw of $7900 "for all finish work"
was advanced to you on May 22 - $3500, May 30
- $2600 and June 2 - $1800. None of the
finishing materials including, but not
limited to, insulation, sheetrock, skylights,
interior doors, bathroom sink and fixtures,
heat pump, flooring, lights and gutters were
ever even delivered. You owe me all this
money - $7900.

Four paragraphs later, Copson concluded, "I demand that you pay

me the $25,000 you owe me immediately." The letter was returned

to Copson undelivered and unopened. 2

The evidence also established that approximately two months

after appellant "left the job," David Thompson, an Assistant

Building Code Official for Nelson County, inspected the

uncompleted building. Thompson indicated in his report that

seven items "were incomplete or deficient"; that the building was

"still at the rough-in stage"; and that it could not be used or

occupied until the wiring and plumbing had been completed and

inspected. As of the September 1997 trial, no additional work

had been performed. James Pace, a contractor, estimated that the

cost of completion of the building would be $22,270, not

including the cost of a heat pump and plumbing work.

At the conclusion of the presentation of evidence, the trial

court took the issue of appellant's guilt under advisement to

"look over" the exhibits and "look at the cases." In his letter

2
We do not address the issue of whether actual receipt of
the notice was required as it is not presented in this appeal.

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opinion, the trial judge concluded that the evidence "established

that at the time [appellant] obtained the third draw he did not

intend to complete the finish work required under that draw."

Accordingly, the trial court found appellant guilty of failing to

carry out a promise to perform construction in return for an

advance of money in violation of Code § 18.2-200.1.

II.

Code § 18.2-200.1 provides, in pertinent part:
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 . . . 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,
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.

Appellant contends that Copson's demand letter dated October

17, 1996 did not meet the requirements of Code § 18.2-200.1. He

argues that the letter did not provide adequate notice because it

"did not specifically state that the $7900 had to be returned

within fifteen (15) days and by including a total demand of

$25,000, [the letter] obfuscated the request for the specific

return of the $7900." We disagree.

"The main purpose of statutory construction is to determine

the intention of the legislature `which, absent constitutional

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infirmity, must always prevail.'" Last v. Virginia State Bd. of

Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992) (quoting

Board of Supervisors v. King Land Corp., 238 Va. 97, 103, 380

S.E.2d 895, 897 (1989)). "Where a statute is unambiguous, the

plain meaning is to be accepted without resort to the rules of

statutory interpretation." Id. at 910, 421 S.E.2d at 205.

"`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)).

When the legislature enacted Code § 18.2-200.1, it plainly

intended to prohibit the fraudulent receipt of funds for

construction work involving buildings. See Boothe v.

Commonwealth, 4 Va. App. 484, 490, 358 S.E.2d 740, 744 (1987).
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 v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681

(1991). 3
3
In Jimenez, the Supreme Court considered whether the
defendant's "actual notice" of a demand for the return of an
advancement of money waived the statutory requirement of written
notice by certified mail. Jimenez, 241 Va. at 251, 402 S.E.2d at

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 In the present case, Copson did all that the statute

required. He sent appellant a demand letter by certified mail,

return receipt requested. The letter was sent to the address

listed in the contract. He specifically "request[ed]" that

appellant return "all" of the $7,900 that "was advanced" "for all

finish work." Copson then listed the three separate payments

constituting the "third draw" and the dates each was advanced.

The fact that he demanded additional amounts owed him in the same

letter does not vitiate the efficacy of his request for the

$7,900 he had already advanced to appellant. What is important

is that appellant was given notice that the third draw, advanced

for future work that was not completed, was to be repaid

"immediately." Copson informed appellant that the contract was

canceled, and he expressly requested return of the advance.

Neither the statute nor case law requires citation to the

specific code section. Accordingly, we hold the letter sent by

Copson complied with the statute and provided valid notice. 4

681 (emphasis added). Since the victim in that case failed to
send by certified mail a written demand, as required by Code
§ 18.2-200.1, the Court reversed the defendant's conviction. See
id.
In the instant case, Copson sent a written demand by
certified mail and appellant failed to return the advance of
money within fifteen days. He complied with the statute.
Whether "actual" receipt of the notice is required under Code
§ 18.2-200.1 is not before us. That issue was denied in
appellant's petition for appeal, and appellant failed to further
pursue that ground. Accordingly, we do not address it here.
4
Appellant also contends the language of the statute
requires the victim to explicitly ask for the repayment of his
advance by using the term, "within fifteen days." This argument
lacks merit. Appellant could have satisfied his obligation under

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 III.

Appellant next contends the evidence was insufficient to

sustain his conviction. He argues that the Commonwealth failed

to show that he acted with fraudulent intent, as required by Code

§ 18.2-200.1. We disagree.

When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the Commonwealth, and the reasonable inferences

fairly deducible from that evidence support each and every

element of the charged offense. See Moore v. Commonwealth, 254

Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr v. Commonwealth,

242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). "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 reverse the judgment of

the trial court, sitting as the finder of fact in a bench trial,

unless it is plainly wrong or without evidence to support it.
See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,

418 (1987).

The crime with which appellant was charged contains five

elements: (1) obtaining an advance of money from another person;

the statute by making payment within fifteen days of receipt of
the demand letter.

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(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 the

address listed in the contract. Code § 18.2-200.1; see also

Jimenez, 241 Va. at 251, 402 S.E.2d at 679; Klink v.

Commonwealth, 12 Va. App. 815, 818-19, 407 S.E.2d 5, 7 (1991).
Whether a fraudulent intent existed at the time the advance

of money was obtained depends upon the circumstances of the case.

See Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44,

45 (1986). Appellant's conduct and representations must be

examined in order to determine if a fraudulent intent existed at

the time. See id. at 519, 346 S.E.2d at 45. "Where a material

element of the crime is the fraudulent intent of the accused both

the Commonwealth and the accused are allowed broad scope in

introducing evidence with even the slightest tendency to

establish or negate such intent." Brooks v. Commonwealth, 220

Va. 405, 407, 258 S.E.2d 504, 506 (1979).

In determining whether fraudulent intent exists, the Court

must "look to the conduct and representations of the defendant."

Norman, 2 Va. App. at 519, 346 S.E.2d at 45. "The use of false

statements to induce someone to enter into a contract can be

persuasive evidence of fraudulent intent, but the absence of such

fraudulent inducement does not preclude a finding that the

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defendant later obtained an advance with fraudulent intent."

Rader v. Commonwealth, 15 Va. App. 325, 330, 423 S.E.2d 207, 210

(1992) (citations omitted).

In Rader, we held that the evidence was sufficient to

convict the defendant of a violation of Code § 18.2-200.1.

There, a homeowner contracted with the defendant to build a deck

and add some improvements to the victim's house. Under the terms

of the contract, the victim was to advance the defendant three

separate draws upon the completion of specific tasks. 5 While the

homeowner was concerned about giving the defendant the second

advance, the defendant "assured" him that the work would be

completed. Id. at 329, 423 S.E.2d at 210. After the victim made

the second advance, the defendant did not complete the work and

failed to order any additional building materials. See id.

Affirming the defendant's conviction in Rader, we recognized

four significant factors that demonstrated fraudulent intent.
First, Rader requested the $9,600 upon the
promise of completing the roof and for the
specific purpose of ordering windows and
doors for the new extension. Rader never
ordered the windows or doors. . . . Second,
5
[The defendant] was advanced $3,125 on the
first day of the job before any work was
begun. The second payment or draw of $6,500
was to be made when the footers were poured
and blocked and the brick work for the two
additions was started. . . . The contract
called for the third draw or payment of
$10,000 to be made when the framing was done
in the Florida room and bedroom and when the
roof was on both rooms.

Rader, 15 Va. App. at 326-27, 423 S.E.2d at 208-09.

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 Rader falsely told the homeowner that he
would order the windows with the $9,600
payment. A defendant's use of false
statements is a significant factor that tends
to prove fraudulent intent in construction
fraud. . . . Third, Rader did not apply for
a building permit for the deck at the time he
applied for the other permits. . . .
Finally, Rader's general lack of
communication with the homeowners about the
problems with the project is further evidence
that he did not intend to complete the
contract.

Id. at 330-31, 423 S.E.2d at 210-11 (citations omitted).
In the present case, the evidence was sufficient as in Rader

to establish beyond a reasonable doubt that appellant violated

Code § 18.2-200.1. Appellant's representations and conduct,

taken together, demonstrate that he procured the third

draw/advance from Copson with the fraudulent intent not to

complete the building.

First, appellant requested money for a subsequent third draw

before providing material and completing work for the second

draw. Significantly, when Copson expressed his hesitation about

making the third advance because "the work had gone so slowly,"

appellant represented that the advance was needed "to get the

finishing materials," "to keep things going," to "continue

working," and to "pay his workers." Similar to Rader, the fact
finder could have determined that these representations were

falsely made and intended to defraud the victim. See id. at 330,

423 S.E.2d at 211.

Next, the evidence established that within a week of Copson

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paying the balance of the third draw, appellant and his workers

"packed up all . . . their tools and left the job." While

appellant had ordered and delivered a toilet bowl, he did not

deliver the sinks, heat pump, skylights, electrical lighting,

sheetrock, gutters, linoleum flooring, interior window frames,

and insulation. Like Rader, "[t]his conduct was a factor from

which the fact finder could have inferred fraudulent intent in

construction fraud." Id.
Finally, after appellant left the job site, Copson attempted

on numerous occasions to contact him to determine when work on

the project was going to resume and be completed. Copson

telephoned appellant "several times a week, sometimes every day."

As we recognized in Rader, the "general lack of communication

with the homeowners about the problems with the project is

further evidence that he did not intend to complete the

contract." Id.

Under the circumstances of this case, we hold that the

Commonwealth's evidence sufficiently established that appellant

possessed the required fraudulent intent. Although appellant

denied any intent to defraud the victim, the fact finder was not

required to believe him or to give any weight to his testimony.
See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998) ("In its role of judging witness credibility, the

fact finder is entitled to disbelieve the self-serving testimony

of the accused and to conclude that the accused is lying to

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conceal his guilt."). The trial court was not plainly wrong when

it concluded that appellant had no intention of completing the

building when he received the third draw from Copson.

Boothe v. Commonwealth, 4 Va. App. 484, 358 S.E.2d 740

(1987), relied on by appellant, is distinguishable from this

case. We held in Boothe that the evidence was insufficient to

prove that the defendant, at the time he contracted with the

victim, acted with fraudulent intent. See id. at 492, 358 S.E.2d

at 745. Appellant argues that like the contractor in Boothe, the
evidence was purely circumstantial and did not provide sufficient

proof of intent to defraud at the time Copson paid the third

draw. We disagree.

Unlike the situation in Boothe, appellant had promised a

definite completion date, February 28, 1995, which he did not

satisfy. Additionally, appellant completely abandoned the

project and his workers walked off the job site; in Boothe the

defendant was unable to complete the job because of "bad weather,

his father's fatal illness" and circumstances involving an

unrelated criminal matter. Id. at 487, 358 S.E.2d at 742.

Finally, Copson's third advance was for a particular purpose,

i.e., to complete "all finish work." Appellant made specific

representations to Copson that the advance was needed to purchase

finishing materials and to continue the work. The contract in

Boothe provided for "full payment in advance," and as we noted in

that decision, "Boothe was not prevented by the contract from

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cashing Mason's checks and immediately spending the money for any

purpose he wished, including satisfaction of supplier and

personal bills." Id. at 492, 358 S.E.2d at 745 (emphasis added).

In the present case, the Commonwealth's evidence was

competent, was not inherently incredible, and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of

construction fraud in violation of Code § 18.2-200.1.

Accordingly, we affirm appellant's conviction.
Affirmed.

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