Kader Mustafa Murgrabi, s/k/a, etc v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 6, 2002
• Docket: 1946011
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued at Chesapeake, Virginia

KADER MUSTAFA MUGHRABI, S/K/A KHADER MUSTAFA MUGHRABI OPINION BY v. Record No. 1946-01-1 CHIEF JUDGE JOHANNA L. FITZPATRICK AUGUST 6, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge

Charles E. Haden (G. Curtis Overman, Jr., on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Kader Mustafa Mughrabi (appellant) appeals his bench trial

conviction of two counts of construction fraud in violation of

Code § 18.2-200.1. On appeal, he contends the trial court erred

in (1) allowing testimony about prior unadjudicated "bad acts,"

and (2) denying a motion to strike and motion to set aside the

convictions because the Commonwealth failed to prove appellant

intended to defraud the victims. For the following reasons, we

affirm. I. BACKGROUND

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom. See Juares v. Commonwealth, 26

Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on August 2, 1999,

Paula Johnson and her husband, Rubert Johnson, Jr. (the

Johnsons) entered into a construction contract with appellant

for work on their house. At the time the contract was

negotiated, appellant told the Johnsons he had nine crews

working for him. The Johnsons gave him an advance of $1,000 to

pay for a patio door that appellant claimed had to be ordered

and would be delivered in about four weeks. The project was

supposed to start upon receipt of the door, which was never

delivered.

Mrs. Johnson did not hear from appellant for over a month

and called him numerous times about his failure to do the work.

She called his business and cell phone numbers, but appellant

did not return her calls. On September 10, 1999, appellant

called and told her he had been delayed because of the weather,

but work would begin on Tuesday or Wednesday of the next week.

However, he failed to appear on those days. Mrs. Johnson

continued to call appellant on his home and business phones, but

- 2 - a few weeks later, the business phone was disconnected. On

October 17, 1999, appellant called the Johnsons and told them

that Scott Fuller (Fuller) would contact them concerning the

job. Fuller arrived but did not have the door and did not begin

work. The Johnsons sent a certified letter to appellant

demanding their money be returned. Appellant promised to give

the advance back but failed to do so.

Linda Ware (Ware) testified that on August 5, 1999, she and

her fiancée, Fred Dylla (Dylla), entered into a construction

contract with appellant to have a porch built on their house.

The parties agreed on a starting date of September 7, 1999.

Appellant also told Ware that he had several crews working for

him. Ware and Dylla gave him a check for $1,350 because

appellant said he needed it "as good faith" and to purchase

building supplies to start the porch.

Due to bad weather, appellant did not begin work on the

porch on September 7 but told Ware he would start the job

September 14. However, no supplies arrived, and appellant did

not begin work on that date. When Ware called, appellant said

the work would begin September 23. However, he did not begin

work on that date either, and Ware's later phone calls to him

were not returned. Richard Elias, a subcontractor, stated that

he went with appellant to the Ware house to consider doing the

work, but declined the job. Ware was unable to get a response

- 3 - from appellant about the work delays and sent two certified

letters to him requesting a return of the advance, but appellant

never returned the money.

Robert Pritchard (Pritchard), a state investigator for the

Department of Professional Occupational Regulations, testified

that in June 1999, two months before appellant entered into the

Johnson and Ware contracts, he met with appellant concerning ten

to twelve complaints against Gada Enterprises, appellant's

business.

Pritchard stated that:

[O]n or about June the 30th, 1999, I interviewed [appellant], and we discussed the requirements of the Board for Contractors for those nine elements that should be – as [sic] a minimum should be in the contract. As I recall, [appellant] was not familiar with the regs [sic] at that time, but I did bring it to his attention those requirements, especially the fact of the start date and estimated completion date.

Appellant objected when the Commonwealth questioned

Pritchard about whether he discussed with appellant the

regulation dealing with the return of advances for work not

started or completed. The trial court allowed Pritchard to

testify, stating, "I think it's proper to establish the history

of action in that regard because it shows knowledge and intent."

Pritchard stated:

- 4 - The issue that I discussed with [appellant] dealt with funds not returned to customers. And I asked [appellant] why the funds were not being returned to customers, because he couldn't provide the materials or products or didn't perform the labor, and his response to me was that it was a cash flow issue, that he could not return the funds at this time because it would affect his business. I asked him if he had sufficient funds available to return the funds that I was discussing with him. He indicated he had seven thousand dollars in his checking account, forty thousand dollars in assets in his firm.

And I again phrased the question, "If you have the assets or the funds, why don't you return those to the people who are due those?" [Appellant] again said that it would affect his business, affect his cash flow and he was not going to do it until he could safely do it to protect his business.

Victoria Carney, appellant's marketing manager, testified

that appellant was having cash flow problems in July 1999 and

was unable to complete ongoing projects. He continued to accept

new contracts and deposits in August 1999 even though he was two

months behind in his work.

Appellant testified that he did not intend to defraud the

Johnsons, Ware and Dylla. He stated that he was delayed by

inclement weather and a heart attack but intended to complete

the projects. Appellant also admitted he was running two to

three weeks behind on his contracts and that he had not paid

himself a salary in four months.

- 5 - II. PRIOR "BAD ACTS" TESTIMONY

Appellant first contends the trial court erred by allowing

Pritchard, the Department of Professional Occupational

Regulations' investigator, to testify that he spoke to appellant

in June 1999 about his failure to return other advance payments,

to timely begin and complete projects, and other regulatory

violations. He argues that this evidence of "prior bad acts"

should have been excluded. We disagree.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d

820, 823 (1986)). "A trial court 'by definition abuses its

discretion when it makes an error of law.'" Shooltz v. Shooltz,

27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon

v. United States, 518 U.S. 81, 100 (1996)).

"Generally, evidence of other offenses is inadmissible if

it is offered merely to show that an accused was likely to

commit the crime for which he is being tried. There are,

however, well-established exceptions to the general rule."

Cheng v. Commonwealth, 240 Va. 26, 34, 393 S.E.2d 599, 603

(1990). "The exceptions to the general rule are numerous, and

evidence of other crimes or other bad acts is admissible when

- 6 - relevant to prove a material fact or element of the offense."

Jennings v. Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755

(1995) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272,

176 S.E.2d 802, 805 (1970)).

Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial.

Id. at 34, 393 S.E.2d at 603 (quoting Kirkpatrick, 211 Va. at

272, 176 S.E.2d at 805). "In order for evidence that the

accused has committed other crimes to be admissible, it need

only be relevant to prove a material fact or issue, and its

relevance must outweigh the prejudice inherent in proving that

an accused has committed other crimes." Wilson v. Commonwealth,

16 Va. App. 213, 220, 429 S.E.2d 229, 234 (1993) (citing Spencer

v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990)).

"'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)

- 7 - (quoting Bourgeois v. Commonwealth, 217 Va. 268, 273, 227 S.E.2d

714, 718 (1976)).

In the instant case, Pritchard's testimony that he had

discussed with the appellant, only two months before the

contracts at issue, his failure to return advanced funds or

complete contractual obligations to at least ten others is

clearly probative of appellant's state of mind and intent to

defraud the Johnsons, Ware and Dylla at the time he entered into

contracts with them. Appellant continued to enter construction

contracts with no specific start or end dates, took deposits for

items never delivered and failed to commence work. Pritchard's

testimony established that appellant had cash flow problems as

early as June 1999 but continued to follow the same pattern of

entering into contracts, retaining deposits and failing to

complete the work.

"Nevertheless, evidence of other crimes is permitted only

when 'the legitimate probative value outweighs the incidental

prejudice to the accused.'" Woodfin v. Commonwealth, 236 Va.

89, 95, 372 S.E.2d 377, 381 (1988) (quoting Lewis v.

Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)).

The evidence that appellant perpetrated more than one fraud

about the same time is relevant to show his fraudulent intent.

See Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105

(1959). The evidence outlined above was highly probative of his

- 8 - intent at the time the instant contracts were signed.

Consequently, any incidental prejudice inherent in the evidence

of the prior "bad acts" was outweighed by its probative value.

Thus, the trial court did not abuse its discretion by allowing

Pritchard to present evidence that was probative of appellant's

fraudulent intent.

III. INTENT TO DEFRAUD

Appellant next argues that the Commonwealth's evidence was

insufficient to prove he had the requisite intent to defraud at

the time the contracts were made. Appellant maintains the

Commonwealth's evidence merely shows that he failed to complete

the jobs on time and failed to return phone calls. Further,

appellant argues that he had credible explanations for the

delays because of the inclement weather and his heart attack.

We disagree.

In reviewing sufficiency of the evidence, "'the judgment of

the trial court sitting without a jury is entitled to the same

weight as a jury verdict.'" Saunders v. Commonwealth, 242 Va.

107, 113, 406 S.E.2d 39, 42 (1991) (quoting Evans v.

Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)).

"[T]he trial court's judgment will not be set aside unless

plainly wrong or without evidence to support it." Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

- 9 - "Circumstantial evidence 'is as competent and is entitled

to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.'" Taylor v. Commonwealth, 33 Va. App.

735, 737, 536 S.E.2d 922, 923 (2000) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). "The

Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)

(internal citations omitted).

The credibility of a witness and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination. See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989). 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 conceal his guilt. See Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) (citing Speight v. Commonwealth, 4 Va. App. 83, 88, 354

S.E.2d 95, 98 (1987) (en banc)).

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

- 10 - promise to perform construction, removal, repair or improvement of any building . . . 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.

"To determine whether fraudulent intent exists, the Court

must 'look to the conduct and representations of the

defendant.'" Rader v. Commonwealth, 15 Va. App. 325, 329, 423

S.E.2d 207, 210 (1992) (quoting Norman v. Commonwealth, 2 Va.

App. 518, 519, 346 S.E.2d 44, 45 (1986)). "A defendant's use of

false statements is a significant factor that tends to prove

fraudulent intent in construction fraud." Id. at 330, 423

S.E.2d at 211. "The time for determining fraudulent intent is

the time at which the defendant procured the advance." Id.

at 329, 423 S.E.2d at 210.

In the instant case, the evidence established that

appellant continued a pattern of entering into contracts with

prospective clients in which he demanded advances for supplies

that were never purchased. He made false statements to both

victims that he had several "crews" working for him at a time

when he was experiencing severe cash flow problems. He failed

to begin or complete any work on the contracts, avoided contact

with the victims, and refused to return their deposits when

- 11 - requested. His dealings with the Johnsons, Ware and Dylla were

not isolated instances, but rather were consistent with his

recent conduct with ten to twelve other homeowners, as

established by Pritchard. Appellant's conduct and

representations sufficiently prove the requisite fraudulent

intent at the time the contracts were executed.

For the foregoing reasons, we affirm.

Affirmed.

- 12 -