Holsapple v. Com.

• Decision Date: 14 January 2003
• Docket Number: Record No. 3078-00-2.
• Citation: 39 Va. App. 522,574 S.E.2d 756
• Court: Virginia Court of Appeals
• Parties: Thomas Michael HOLSAPPLE v. COMMONWEALTH of Virginia.

574 S.E.2d 756

39 Va. App. 522

Thomas Michael HOLSAPPLE v. COMMONWEALTH of Virginia.

Record No. 3078-00-2.

Court of Appeals of Virginia, Richmond.

January 14, 2003.

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

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

Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, AGEE, FELTON and KELSEY, JJ.

UPON A REHEARING EN BANC

ROBERT J. HUMPHREYS, Judge.

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 brotherin-law, 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. 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[.] $_____________

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 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 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

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