Holsapple v. Com.

• Court: Virginia Supreme Court
• Writing for the Court: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, S.J.
• Citation: Holsapple v. Com., 587 S.E.2d 561, 266 Va. 593 (2003)
• Decision Date: 31 October 2003
• Docket Number: Record No. 030334.
• Parties: Thomas Michael HOLSAPPLE v. COMMONWEALTH of Virginia.

587 S.E.2d 561

266 Va. 593

Thomas Michael HOLSAPPLE v. COMMONWEALTH of Virginia.

Record No. 030334.

Supreme Court of Virginia.

October 31, 2003.

Charles L. Weber, Jr., Charlottesville, for appellant.

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

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, S.J.

OPINION BY Senior Justice HARRY L. CARRICO.

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... 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.

The defendant, Thomas Michael Holsapple, was convicted in a bench trial of violating Code § 18.2-200.1, and he was sentenced to serve twenty years in the penitentiary, with ten years suspended. The Court of Appeals affirmed the conviction, holding the trial court did not err in ruling, (1) that Code § 18.2-200.1 does not require proof of actual receipt by a contractor of a request to return an advance of money, Holsapple v. Commonwealth, 39 Va.App. 522, 533, 574 S.E.2d 756, 761 (2003), and (2) that Holsapple's unsatisfactory performance as demonstrated by the record amounted to a failure to perform under Code 18.2-200.1, id. at 537, 574 S.E.2d at 763. We awarded Holsapple an appeal limited to consideration of the Court of Appeals' affirmance of these two rulings.

BACKGROUND

Viewed in the light most favorable to the Commonwealth, the evidence shows that in 1998 the home of Sandra P. Frazier was destroyed by fire. She and her brother-in-law, Calvin B. Frazier, entered into a verbal contract whereby Calvin agreed to install a modular home in place of the burned structure. On May 12, 1998, Calvin contracted with Doug R. Currier, doing business as Star Bright Construction,¹ for the building of a foundation for the installation of a double-wide modular home. Currier held a Class C contractors license, permitting him to bid on and perform construction contracts not exceeding $7,500.00 per contract or $150,000.00 in a year.

Holsapple was the manager and agent of Star Bright Construction. On June 8, 1993, the Virginia Department of Professional and Occupational Regulation permanently revoked Holsapple's license as a building contractor. Notwithstanding, he accepted advances of money to perform construction work on at least three occasions prior to the Frazier's May 12, 1998 contract with Star Bright. On April 14, 1998, Holsapple was convicted on three counts of construction fraud and was sentenced on July 24, 1998, to fifteen years' imprisonment, with all but fifteen months suspended. He was released on bond and scheduled to report to jail on August 11, 1998, but actually reported on August 31, 1998.

Holsapple was present when the May 12, 1998 contract between Calvin Frazier and Star Bright was entered into, but Currier signed the contract. At the time, Calvin paid $6,000.00 toward the contract price of $12,500.00 and paid the balance on June 2, 1998. Although Calvin had paid for the work in full, Holsapple approached Ms. Frazier in July or August of 1998 and told her that there was an outstanding balance due of $1,100.00 for the work on the foundation and that he would place a lien on her property if she did not pay the $1,100.00. Holsapple and Currier also told Ms. Frazier that the modular home Calvin was installing was poorly constructed, and they offered to take over the project, tear down what had been constructed, and erect a "stick-built" home for her.

Ms. Frazier paid Holsapple the $1,100.00 and agreed on August 5, 1998, to accept the offer of Holsapple and Currier to take over the project, which was supposed to cost $40,000.00. Both men insisted that the deposit for the new work be paid in cash. Holsapple determined that the amount needed was $15,000.00. Ms. Frazier paid this amount to Currier, but Holsapple wrote "received of Sandy Frazier $15,000.00 in Cash Contracts for home" on the Proposal and Acceptance form the two men used in their business.

On August 6, 1998, Holsapple and Currier demanded an additional $9,000.00 from Ms. Frazier, which she paid. Holsapple wrote the receipt for the payment, and Currier signed it. On August 10, 1998, Holsapple and Currier requested and received another $10,800.00 for the installation of a well and a front porch on the home.

When Ms. Frazier asked Holsapple and Currier whether a building permit was required to stick-build her home, they responded that a permit was not needed because the stick-built house and the existing modular home were the same and she already had a permit for the modular home.

Ms. Frazier paid an additional $7,500.00, including $3,745.00 for roof trusses, as shown on an undated Proposal and Acceptance form filled out by Holsapple. A printed provision on the form stated that "WE PROPOSE hereby to furnish material and labor—complete in accordance with above specifications for the sum of:" but no amount was entered. Instead, a handwritten statement was inserted to the effect that the "Bal for Rafters will be Refunded if other Rafters are installed." A representative of a local building supply firm testified that someone from Star Bright Construction purchased a set of house trusses on August 7, 1998, at a cost of $983.84, and that the trusses were delivered to the Frazier job site three days later.

The same building supply firm also delivered a white vinyl sliding glass door to the job site for installation in the Frazier home. The door was unloaded from the delivery truck by Steven R. Buckland, a laborer-carpenter working on the Frazier project, and he leaned the door against a tree. On the same day the door was delivered, Holsapple instructed Buckland to load the door onto Holsapple's truck so he could put it in storage. Buckland later observed a white vinyl glass sliding door of the same size, dimension, and shape installed in a home Holsapple was building for himself and his girlfriend.

Throughout these transactions, Ms. Frazier dealt primarily with Holsapple. He "was always the one that was doing all the figuring of what [she would] need and how much [she would] need." Holsapple determined the amount that was due from time to time, and Ms. Frazier then paid the money to Currier at Holsapple's direction. Holsapple also purchased the materials that were needed and did all the driving, including transporting Currier to and from the job site.

Although Holsapple reported to the Albemarle-Charlottesville Regional Jail on August 31, 1998, to serve the sentences imposed on the earlier construction fraud cases, he actually left the Frazier job site on August 15, 1998, after the trial judge denied his request for work release so he could continue working on the Frazier job. Currier continued work on the Frazier project until he was incarcerated for a conviction on an unrelated matter and later did some "piddly stuff" after his release from incarceration.

The Albemarle County Building Inspector and a private contractor inspected the Frazier home. No building permit was posted on the property. After the inspection, the house was declared not habitable. Some of the foundation joints had no mortar in them, the sill plate was not attached to the foundation, no hangers had been installed to hold the floor joists in place, the roof trusses were not properly secured or tied together, the roof sheathing was not properly nailed to the trusses, and the shingles were not properly nailed to the roof. The house was not level; on one eight-foot-long wall, there was a three and one-half inch difference in floor to ceiling height between one end and the other. The house, which was fifty-three feet long, sloped six and one-half inches from one end to the other. The porch was not connected to the house, and there was no cement foundation or other footer to support its weight.

The house was eventually torn down, "even the block work." In its place, Ms. Frazier built "a prefab home."

On October 23, 1998, Ms. Frazier sent a letter to Holsapple at the Albemarle-Charlottesville Regional Jail, where he was incarcerated, demanding the return of her money, totaling $45,137.16. She sent a similar letter to Currier. Both letters were sent by certified mail, return receipt requested. Neither recipient returned Ms. Frazier's money.

NOTICE

Holsapple argues that, by requiring notice to be sent by certified mail with return receipt requested, the General Assembly intended to place a burden on the Commonwealth to put the return receipt into evidence to prove that the notice actually arrived at its intended destination and was received by someone at that address. Holsapple correctly states that Code § 18.2-200.1 is a penal statute which must be strictly construed against the Commonwealth and in favor of the accused. Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991). Holsapple also says that the phrase "sent by certified mail, return receipt requested" is ambiguous and that where statutory language permits two tenable constructions, that construction which favors the accused must be adopted.

We do not agree that the statutory language is ambiguous. Hence, we construe the language according to its plain meaning without resort to rules of statutory interpretation. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). The language of Code § 18.2-200.1 plainly means that a request for a return of money advanced on a construction project is sufficient notice if sent by certified mail, return receipt requested,...