Walter Scott Baugh v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 23, 2001
• Docket: 0348002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and Senior Judge Coleman Argued at Richmond, Virginia

WALTER SCOTT BAUGH MEMORANDUM OPINION * BY v. Record No. 0348-00-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 23, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF POWHATAN COUNTY Thomas V. Warren, Judge

J. Thompson Cravens (Jason P. Livingston; J. Thompson Cravens & Associates, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Walter Scott Baugh was convicted in a bench trial of failing to

perform promised construction in return for an advance of money

in violation of Code § 18.2-200.1. On appeal, he contends (1)

the evidence was insufficient to support his conviction and (2)

the letter requesting repayment of the advance failed to comport

with the notice requirements of Code § 18.2-200.1. We disagree

and affirm the conviction.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the

disposition of this appeal.

I. SUFFICIENCY OF THE EVIDENCE

Baugh first contends the evidence was insufficient to

sustain his conviction of violating Code § 18.2-200.1. The

Commonwealth, he maintains, failed to prove beyond a reasonable

doubt that he had fraudulent intent at the time he obtained the

second advance. We disagree.

When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1987). "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." Watkins v. Commonwealth, 26 Va. App. 335,

349, 494 S.E.2d 859, 866 (1998). We will not disturb a

conviction unless it is plainly wrong or unsupported by the

evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).

"The Commonwealth bears the burden of 'proving beyond a

reasonable doubt each and every constituent element of a crime

before an accused may stand convicted of that particular

offense.'" Bruce v. Commonwealth, 22 Va. App. 264, 268, 469

- 2 - S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.

524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.

App. 371, 506 S.E.2d 318 (1998). Thus, to convict Baugh of

violating Code § 18.2-200.1, 1 the Commonwealth had to prove

beyond a reasonable doubt the following five elements:

(1) obtaining an advance of money from another person, (2) a fraudulent intent at the time the advance is obtained, (3) a promise to perform construction or improvement involving real property, (4) a failure to perform the promise, and (5) a failure to return the advance "within fifteen days of a request to do so by certified mail" to the defendant's last known address or his address listed in the contract.

Klink v. Commonwealth, 12 Va. App. 815, 818, 407 S.E.2d 5, 7

(1991) (quoting Code § 18.2-200.1). Baugh claims the

Commonwealth's evidence was insufficient to prove that he had a

fraudulent intent at the time he obtained the second advance.

1 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 . . . or improvement 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.

- 3 - "Whether a fraudulent intent existed at the time the

advance was obtained depends upon the circumstances of the

case." Id. at 819, 407 S.E.2d at 8. "The defendant's conduct

and representations must be examined in order to determine if a

fraudulent intent existed at the time." Id. "A defendant's use

of false statements is a significant factor that tends to prove

fraudulent intent in construction fraud." Rader v.

Commonwealth, 15 Va. App. 325, 330, 423 S.E.2d 207, 211 (1992).

We are mindful, in resolving this issue, that "where the

Commonwealth's evidence as to an element of an offense is wholly

circumstantial, 'all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'" Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)

(quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,

567 (1976)). "However, '[w]hether the Commonwealth relies upon

either direct or circumstantial evidence, it is not required to

disprove every remote possibility of innocence, but is, instead,

required only to establish guilt of the accused to the exclusion

of a reasonable doubt.'" Cantrell v. Commonwealth, 7 Va. App.

269, 289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v.

Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600

(1986)).

Applying these principles to the evidence before us, we

hold that the evidence was sufficient to prove beyond a

- 4 - reasonable doubt that Baugh violated Code § 18.2-200.1. Taken

together, Baugh's representations and conduct demonstrated that

he obtained the second advance with the fraudulent intent not to

complete the project.

Viewed in the light most favorable to the Commonwealth, the

evidence established that, on February 13, 1999, Baugh entered

into a contract with Robert Jorgenson to build a garage at

Jorgenson's home for $14,575. The contract provided for a down

payment of $4,575 and for two additional payments of $5,000

each. The contract was silent as to the completion date of the

project, the dates or conditions upon which the second and third

installments were due, and any escrow requirements for those

payments. Upon execution of the contract, Jorgenson gave Baugh

a check for $4,500 as a down payment. Baugh told Jorgenson that

"he should be finished with the garage by the end of March."

On February 24, 1999, after completing the foundation of

the garage, Baugh asked for the second installment payment,

telling Jorgenson that "he had the trusses and the lumber

ordered and needed another check." According to Jorgenson,

Baugh specifically indicated that "he needed this second check

to pay for the materials that he had ordered." Based on that

representation, Jorgenson wrote Baugh a check for $5,175. 2

2 This figure represents the $5,000 second installment provided for in the contract, $75 owed from the first installment, and an additional $100 for "trim roof on front overhang."

- 5 - Jorgenson was unaware at the time that Baugh was working on

other jobs.

After obtaining the second installment, Baugh performed no

work on the garage. Shortly after receiving the check, he spent

approximately $2,300 of the $5,175 on purchases unrelated to the

construction of Jorgenson's garage and ultimately spent none of

the $5,175 on the garage project. No material, other than the

initial material for the foundation, was ever delivered to the

job site. At trial, Baugh was unable to present any

documentation showing that he had in fact ordered the trusses or

lumber.

Additionally, Jorgenson had difficulty contacting Baugh

after payment of the second installment. He attempted to reach

Baugh by telephone several times. The first "couple of times"

he left a message on Baugh's answering machine, but Baugh did

not return his calls. Eventually, the machine stopped answering

calls altogether.

On March 28, 1999, Jorgenson wrote a letter to Baugh asking

him to call or stop by his house to discuss "what's going on"

with the garage. He placed the letter in Baugh's mailbox and

mailed him a copy. Shortly thereafter, Baugh met with Jorgenson

and told him he would resume work on the garage on or before

April 14, the material would be delivered April 14, and the

garage would be completed "two weeks or so" after that.

- 6 - On April 14, 1999, Jorgenson became "very concerned"

because work had not resumed on the garage, the material had not

been delivered, and Baugh had not contacted him since their

meeting some two weeks earlier. When Baugh eventually called

late that day to tell Jorgenson that he had been hospitalized

for eight days with appendicitis, Jorgenson informed him that he

did not want him on the job anymore because he was "not

dependable." According to Jorgenson, Baugh did not, contrary to

Baugh's claim, tell him during that call that he had arranged

for one of his workers to complete the garage.

On April 26, 1999, Jorgenson's attorney sent a certified

letter, return receipt requested, to the address of Baugh's

construction company listed in the contract requesting a full

refund within fifteen days. The letter was returned unclaimed

on May 12, 1999.

From this evidence, the trial court, as fact finder, could

have concluded beyond a reasonable doubt that Baugh's

representations were falsely made and intended to defraud

Jorgenson. Not only did Baugh tell Jorgenson that he needed the

second installment for the specific purpose of purchasing

"ordered" material that was never delivered, he spent none of

the second installment on that material or the construction of

the garage. See Rader, 15 Va. App. at 330, 423 S.E.2d at 210-11

(holding that defendant's request for an advance for the stated

purpose of buying building material that was never ordered and

- 7 - defendant's failure to apply any of the advance so requested

toward work on the project were factors from which fact finder

could infer fraudulent intent). Furthermore, once he received

the second installment, Baugh failed in all but one instance to

respond to Jorgenson's attempts to contact him and generally did

not keep Jorgenson informed about when work on the garage would

resume or the reasons for the work stoppage and delays. See id.

(holding that defendant's general lack of communication with

client about project's problems was further evidence of his

fraudulent intent). These circumstances, we conclude, excluded

every reasonable hypothesis of innocence and were sufficient to

prove beyond a reasonable doubt Baugh's fraudulent intent.

Furthermore, the trial court's judgment was not plainly wrong.

Although Baugh denied that he had any intent to defraud

Jorgenson and disputed much of Jorgenson's testimony, the trial

judge was not required to accept his explanations and disbelieve

Jorgenson. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d

608, 610 (1981). "The credibility of a witness, the weight

accorded the testimony, and the inferences to be drawn from

proven facts are matters solely for the fact[ ]finder's

determination." Keyes v. City of Virginia Beach, 16 Va. App.

198, 199, 428 S.E.2d 766, 767 (1993). Here, the trial judge

expressly stated that he found Jorgenson to be "a very credible

witness" and "more credible than" Baugh and his witness.

- 8 - II. REQUEST FOR RETURN OF ADVANCE

Appellant also contends the letter sent to him on April 26,

1999 by Jorgenson's attorney was deficient because it requested

a full refund rather than a refund specifically of the second

installment. We disagree.

"[A] person accused of violating [Code § 18.2-200.1] cannot

be convicted unless the evidence proves beyond a reasonable

doubt . . . that the accused 'fail[ed] to return [the] advance

within fifteen days of a request to do so,' and that the request

was 'sent by certified mail, return receipt requested.'"

Jimenez v. Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681

(1991) (quoting Code § 18.2-200.1).

Here, Jorgenson did all that the statute required. He

sent, through his attorney, a "request" letter by certified

mail, return receipt requested, to Baugh's address listed in the

contract. In that letter, he demanded that Baugh return "the

$9,675.00 paid to [Baugh] for the [garage] project." The letter

lists the two advances made by Jorgenson, including "the

additional installment of $5,175.00 on February 24, 1999." The

letter further states as follows:

You have failed or refused to perform the promised construction and have failed to make good such advances. Further, the supplies that were supposedly ordered never were delivered.

The fact that Jorgenson demanded return of the full amount

advanced to Baugh does not, in our view, invalidate or render

- 9 - deficient his request for the return of the $5,175 second

installment. The letter clearly and effectively informs Baugh

that, inter alia, the second advance was to be returned to

Jorgenson within fifteen days. Neither the statute nor case law

requires more. Accordingly, we hold the letter sent by

Jorgenson complied with the statute and provided valid notice to

Baugh.

For these reasons, we affirm Baugh's conviction.

Affirmed.

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