Jimenez v. Com.

Decision Date08 May 1990
Docket NumberNo. 1314-88-3,1314-88-3
Citation392 S.E.2d 827,10 Va.App. 277
PartiesEddie Allen JIMENEZ v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

J. Heather Mitchell, Blacksburg, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

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

MOON, Judge.

The principle issue in this case is whether the evidence was sufficient to prove that Eddie Allen Jimenez was guilty of grand larceny in violation of Code § 18.2-200.1 and Code § 18.2-95 by failing "to substantially make good" advances of money for construction. Jimenez maintains that he could not be convicted under this code provision because he, in fact, expended more money on the contract than he was paid. We disagree and affirm because the evidence was sufficient to prove that Jimenez fraudulently took at least two advances of money in excess of $200 for which he promised specific and immediate construction but failed "to substantially make good."

On appeal, we consider the evidence in the light most favorable to the Commonwealth, giving to it all reasonable inferences fairly deducible therefrom. Norman v. Commonwealth, 2 Va.App. 518, 520, 346 S.E.2d 44, 45 (1986). We also "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 to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981).

The statute under which the appellant was indicted provides in pertinent part:

If any person obtain from another an advance of money, ... with fraudulent intent, upon a promise to perform construction, ... and fail or refuse to perform such promise, and also fail to subsequently make good such advance, he shall be deemed guilty of larceny of such money, merchandise or other thing if he fails to return such advance within 15 days of the request to do so sent by certified mail, return receipt requested, to his last known address or to the address listed in the contract.

Code § 18.2-200.1.

The appellant entered into a contract to build a four-bay garage for the homeowners, Mr. and Mrs. Simpkins. The contract provided that appellant would build a garage of fine quality and good construction to express specifications, with work to commence October 5, 1987. Barring any acts of God or unforeseen circumstances, appellant promised to complete the project no later than October 31, 1987, for a cost not to exceed $12,700.

During contract negotiations the appellant falsely represented himself as a licensed, bonded contractor. During the first two or three weeks the appellant worked at the job. With the advanced money, appellant purchased materials, paid for rental equipment, and also undertook other work.

Although by the contracted completion date appellant had received advances totaling $12,816, the work was not finished. He claimed to have purchased and delivered to the job site materials for which he had receipts totaling $11,690.16. In addition, he claimed to have paid a foreman approximately $1200, an electrician approximately $650, and two other workers approximately $2,056. Thus, the appellant claimed to have expended between $12,890 and $15,596 on the job, more money than he received in advances from the homeowners. He testified that he spent time on another job in order to get profits to be able to complete the Simpkins' job. However, the job was for a relative and he did not get paid.

After the appellant ceased work, the Simpkins' returned certain unused materials to suppliers, for which they obtained a refund of $1,066.14. The Simpkins' obtained an $8,077 estimate from another contractor for completion of the job. The appellant returned no money to Mr. and Mrs. Simpkins.

On two occasions appellant obtained advances of money from Mr. and Mrs. Simpkins by making specific promises to have work performed immediately; he defaulted on those promises. On October 22 he told Mrs. Simpkins that he needed $1,540 to have the floor poured in the garage. He said that the cement truck would be there at noon the next day to pour the floor and that the company had a policy of not pouring the cement unless it had the cash. Mrs. Simpkins testified that she thought that if she was going to get a floor she would have to give him that much more money. She gave him the check for $1,540 but Jimenez did not pay the cement company and the floor was never poured. On November 6, Mr. Dunford, the block layer, advised appellant that he would not finish the work he was doing because he had not been paid. Jimenez called Mrs. Simpkins and said he needed $500 to pay Dunford. Mrs. Simpkins knew Jimenez owed Dunford money and thought the $500 would save the work and she would get her garage. She gave Jimenez a check for $500. Jimenez called Dunford from Mrs. Simpkins' kitchen and said "she's giving me a check" and "I'm on my way to pay you the money I owe you." Jimenez never paid Dunford and the block was not laid until some months later when Mrs. Simpkins finally paid Dunford directly. Jimenez never returned the $1,540 he received for the floor or the $500 he received for the block laying. These incidents, together with the...

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2 cases
  • People v. Veling
    • United States
    • Michigan Supreme Court
    • July 13, 1993
    ...and unambiguously stated. Leo v. Atlas Industries, Inc., 370 Mich. 400, 121 N.W.2d 926 (1963).14 See, e.g., Jimenez v. Commonwealth, 10 Va.App. 277, 392 S.E.2d 827 (1990), rev'd on other grounds, 241 Va. 244, 402 S.E.2d 678 (1991); Broughton v. Commonwealth, 596 S.W.2d 22 (Ky.App.1979); Sta......
  • Jimenez v. Com.
    • United States
    • Virginia Supreme Court
    • March 1, 1991
    ...appealed his conviction to the Court of Appeals. The Court of Appeals affirmed the trial court's judgment, Jimenez v. Commonwealth, 10 Va.App. 277, 392 S.E.2d 827 (1990), and we granted Jimenez this Jimenez contracted with the Simpkinses to build them a four-bay garage at a cost not to exce......

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