Boothe v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: KEENAN
• Citation: Boothe v. Com., 358 S.E.2d 740, 4 Va.App. 484 (Va. App. 1987)
• Decision Date: 21 July 1987
• Docket Number: No. 0138-86-3,0138-86-3
• Parties: Sherman L. BOOTHE, Sr. v. COMMONWEALTH of Virginia. Record

Page 740

358 S.E.2d 740

4 Va.App. 484

Sherman L. BOOTHE, Sr. v. COMMONWEALTH of Virginia.

Record No. 0138-86-3.

Court of Appeals of Virginia.

July 21, 1987.

J. Harold Eads, Fincastle, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and KEENAN and MOON, JJ.

KEENAN, Judge.

Sherman L. Boothe, Sr. was convicted of construction fraud pursuant to Code § 18.2-200.1, based on a charge that he fraudulently obtained a $200 advance of money upon an unfulfilled promise to install a septic system and a driveway. The issues presented in this appeal are: (1) whether a septic system is a "structure" within the meaning of Code § 18.2-200.1; and (2) whether the evidence was sufficient to support a finding that Boothe entered into the contract with intent to defraud. We find that a septic system falls within the scope of Code § 18.2-200.1; however, we reverse the conviction because we find the evidence insufficient to establish fraudulent intent.

On September 12, 1984, Boothe entered into a contract with Harold W. Mason, promising to install a septic system and to grade for a driveway on an undeveloped lot owned by Mason. He was paid $2,150 in advance for the work. On October 3, 1984, the contract was modified to include two more septic lines and some gravel for the driveway. Boothe was paid an additional $1,091 in advance for this work. Neither contract specified a completion date and Mason testified that he did not question Boothe's request to be paid in advance since he had contracted with Boothe on a prior occasion and had paid him in advance at that time.

Mason testified that he told Boothe he wanted the work completed as soon as possible so he could build a house on the lot. He further testified that he contracted with a Mr. Simpson to construct the house as soon as Boothe completed his contract. He did not, however, recall informing Boothe of the pending contract for construction of the house.

Rita Smeltzer, a witness for Boothe, testified that she was present when the September contract was prepared. She testified:

Harold Mason ... stated that he was in no hurry for the septic system or anything until spring of the year. He just wanted to get the estimate on the job, get somebody to do it so he could turn it in to the company he was borrowing the money from.

According to Mason, Boothe brought a backhoe to his property sometime in November 1984 and cleared approximately half an acre of small cedar trees. Mason further testified that Boothe dug enough of a driveway so that "you could get a vehicle up there;" however, no other work was performed.

Mason made numerous attempts to contact Boothe regarding the status of the contract. He testified that he called Boothe and was informed by the person who answered the phone that Boothe's father was ill. In late November, Mason wrote to Boothe offering him an additional $200 to perform the contract, but demanding a full refund if the contract was not performed. According to Mason, Boothe responded with a phone call assuring him that the work would be done. Mason testified that Boothe gave him no excuse at this time for his failure to perform the contract, but in later conversations, Boothe complained of a toothache and wet ground. Mason's last contact with Boothe was in mid-January 1985, when Boothe called to again assure Mason that he would perform the contract.

Regarding the weather conditions, Mason testified that when he spoke to Boothe in December, "the weather was exceptional." Mason acknowledged, however, that in January the weather was "extremely cold" for a period of two or three weeks, and that during this time no work could have been done on his lot. Mason was also aware that Boothe's father died in early January.

Aside from Mason's testimony, the Commonwealth produced testimony from Patricia and Ronald Payne who contracted with Boothe for the installation of a septic tank in December 1984. The Paynes testified that they paid Boothe the contract price of $2,200 in advance and that Boothe failed to perform the contract.

At the close of the Commonwealth's case, Boothe moved to strike the evidence on two grounds. First, he argued that the Commonwealth failed to demonstrate his intent to defraud. Second, he argued that the acts complained of did not fall within the scope of Code § 18.2-200.1 because the work involved raw land rather than a building or structure. The court denied the motion to strike on both grounds. Regarding the scope of Code § 18.2-200.1, the court relied on Black's Law Dictionary, stating:

A structure ... is "[A] combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land." Now. A septic system, were we talking only about a driveway I believe you'd be correct. I don't think there's any question about that. But a septic system is a combination of materials. It does have a use. That use is related to the occupancy of the land. And its true that it is not installed, in normal cases, above the surface of the ground but it does fall below the surface. But apparently that structure in general usage meets the definition of a structure. So I'm going to overrule you on that.

Boothe testified in his own behalf. He acknowledged that he entered into the contract, received money, and failed to perform the work specified in the contract. He testified, however, that the reasons he did not complete the job were bad weather, his father's fatal illness, and his trial in December 1984 for rape. Regarding his business practices, Boothe testified that he routinely demanded payment in advance because he previously had trouble collecting bills. He was unable to account for the money given to him by Mason because of the way he handled his finances. He explained:

Say you got four or five jobs going. You're not going to specifically pick out one job and say well alright, this money goes to this job, this money goes to that job, and stuff like that. You can't do it that way. You just say you got four jobs here. You've got your money here. You've got to do all five jobs. You can't determine where the money is going to go.

Boothe further testified, as did his wife, that he did not have a checking account. He said that he used the proceeds of Mason's checks "to pay bills just like I do any other job." He explained that he did not separate the funds, which he apparently kept in his pocket, because "it don't make no difference if it comes from Wray's job, Mason's job, whose job, it's all together."

Boothe estimated that he spent thirty hours working on Mason's property. He testified that he did not begin work immediately because he had to finish another job and that Mason was aware of the reason for the delay. He further testified that he was delayed in starting because Mason wanted the contract modified and the modifications would require more work. It was not until after the terms of the contract were settled that Boothe believed he could begin.

Boothe described the work he did as "clearing trees ... getting roots and everything and taking them to the lower end of the property" and "kind of leveling his lot out and burying the excess dirt, stumps, stuff like that." He testified that the weather prevented him from making better progress because:

There was, you know, some pretty days there but a lot of people don't understand. It's clay mud. It'd be dry on top but as soon as you dig down in it all you got was a big mud pile of dirt. And as soon as you run over it with a tractor a couple of times it just squeezes the water out of it. It's like a sponge.

Ultimately, Boothe was unable to perform the contract because his backhoe, which had been left on Mason's property since November, was repossessed by the bank in late January of 1985. Mrs. Boothe testified that the last payment on the backhoe was made in July 1984, and that her attempt to arrange refinancing failed. Boothe acknowledged that he fled Virginia in February 1985 to avoid sentencing on his rape conviction.

Boothe's wife, Elizabeth, testified regarding the company finances. She could not account for the proceeds of Mason's checks, although she thought that "some of it went to pay expenses and pay for materials of our supplier in order to get materials ... for the next job which would have been Mr. Mason's." However, Mrs. Boothe could not identify any material which had been specifically purchased for the Mason job. Further, she testified that when Boothe fled Virginia in February 1985, he left her with only $200.

After hearing all the testimony, the court found Boothe guilty. The court acknowledged that there was "evidence here to support that the defendant intended to perform this work when he accepted that money." However, the court found it "incredible" that Boothe spent thirty hours working at Mason's property. In addition, the court found it "extremely significant" that there were no business records to account for the money paid to Boothe by Mason. The court also found significant the fact that the money was unaccounted for when Boothe fled to Florida. Regarding Boothe's request for payment in advance, the court stated: "It may be inferred that if he ...