                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Coleman
Argued at Richmond, Virginia


CHARLES C. PITTS
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0277-07-2                                   JUDGE SAM W. COLEMAN III
                                                                  FEBRUARY 19, 2008
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
                              Ernest P. Gates, Judge Designate

                 William E. Moore, Jr. (Moore & Moore, on brief), for appellant.

                 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Charles C. Pitts was tried without a jury and convicted of construction fraud in violation of

Code § 18.2-200.1. The Question Presented as framed by Pitts for which we granted an appeal is

whether the assumption of a “pre-existing debt” is sufficient to constitute “an advance for the

purposes of Code § 18.2-200.1.” 1 The underlying construction agreement that gave rise to the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Code § 18.2-200.1 provides:

                 If any person obtain from another an advance of money,
                 merchandise or other thing, of value, with fraudulent intent, upon a
                 promise to perform construction, removal, repair or improvement
                 of any building or structure permanently annexed to real property,
                 or any other improvements to such real property, including
                 horticulture, nursery or forest products, 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, 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.
question began when Pitts entered into a contract on behalf of himself and his partner, d/b/a

A & P Remodeling, to replace the homeowners’ siding for which Pitts received an advance by

check of $11,032.14, ostensibly for the cost of materials. After Pitts and his partner purportedly

severed their partnership relation, Pitts contracted with the homeowners to assume the

contractual obligations and to complete the job and “give them credit” for the advance under the

prior contract. Although Pitts admittedly then failed to complete the construction, he argues that

the consideration for the “second contract” was the “assumption of a pre-existing debt” and

because there was no “advance” of new money, an essential element of construction fraud under

Code § 18.2-200.1 was not proven. Assuming that Pitts is correct in his assertion that the

consideration for his individual agreement was based solely upon his “assumption of a debt”

which did not constitute an “advance” of funds, a proposition which we do not concede except

for resolution of the issues before us, nevertheless, we must still consider and determine whether

the evidence, viewed in the light most favorable to the Commonwealth and considering the entire

record, proved that Pitts acted with fraudulent intent when he received the initial or a subsequent

advance. Finding the evidence sufficient on that basis, we affirm the trial court’s judgment.

                                              I. Facts

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). “The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). As noted, even if we accept Pitts’s argument that no “advance”

occurred when he obligated himself under the second contract to “assume the pre-existing debt”

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from the first contract, nevertheless, we must consider whether the evidence is sufficient to

prove, in the absence of a contrary factual finding by the trial judge, that Pitts acted with

fraudulent intent when he received the initial advance and/or the subsequent advance by check of

$2,800 payable to the materials supplier.

               When [reviewing] . . . on appeal the sufficiency of the evidence to
               sustain . . . [a criminal] conviction, the appellate court has a duty to
               examine all the evidence that tends to support the conviction.
               Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110
               (2005); Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d
               72, 72 (1998); Commonwealth v. Jenkins, 255 Va. 516, 520, 499
               S.E.2d 263, 265 (1998) . . . . [T]his examination is not limited to
               the evidence mentioned by a party in trial argument or by the trial
               court in its ruling. . . . [A]n appellate court must consider all the
               evidence admitted at trial that is contained in the record.

Bolden v. Commonwealth, ___ Va. ___, ___, 654 S.E.2d 584, ___ (2008).

       So viewed, the evidence established that Laurence and Gail Pease contracted with Pitts

and his partner, conducting business as A & P Remodeling, to replace the siding on their home.

On September 12, 2005, Gail Pease signed the contract for the work and wrote a check payable

to A & P Remodeling for $11,032.14, the cost of the materials, and gave it to Pitts. This check

was number 125 from the Peases’ SunTrust account. Pitts and Laurence Pease initialed the

notation made on the contract that the cost of the materials had been paid by “Suntrust check

#125.” The next day, Pitts endorsed this check and deposited it in “the account of A & P

Remodeling.”

       On September 28, 2005, Pitts returned to the Peases’ home and informed them that A & P

Remodeling had “broken up.” No materials had been delivered, and no work had yet been done

on the Peases’ job. However, Pitts represented that he would do their work and the Peases

signed another contract with Pitts, who was now conducting business as Pitts Remodeling. Pitts

told them the first check they had written would be “credited” and would be applied towards the

needed materials for the job. This second contract with Pitts states, “Materials will be paid
                                                 -3-
upfront 11,032.14.” A notation was made on the top of this new contract stating, “Paid material

Check #125.” Pitts and Laurence Pease initialed this notation. This contract also stated that the

cost of the labor to do the work was $8,400 which was payable in “3 installments of $2,800.”

Pitts also wrote a note to the Peases asking them to “dispose of [the] old contract” and informing

them that his former business partner should not receive any of the new paperwork regarding the

Peases’ job.

       On October 11, 2005, Pitts returned to the Peases’ home to get a “check for $2,800,

which was supposed to be the first installment on the work, which he said he was going to start,

but the materials had not yet been delivered.” Pitts said he needed the $2,800 to pay for the truck

to deliver the supplies. Gail Pease spoke to a woman at the building supply company to confirm

that the materials for her job were there, and learned that “they needed the money . . . before they

would release the materials” because the materials had “never been paid for.” Gail Pease gave

Pitts the check for $2,800 but made it payable to the materials supply company, LYFTYM

Building Products. The next day, Pitts and two workers arrived at the Peases’ home with a

Ryder rental truck loaded with supplies. They unloaded the supplies. Pitts left to return the

rental truck while the two workers remained on the premises working. Pitts never returned that

day. Pitts worked on the Peases’ home twice between October 13, 2005 and November 1, 2005,

but did nothing but apply an insulating layer on top of the original siding. After November 1,

2005, Pitts never returned to the Peases’ home. The Peases unsuccessfully attempted to contact

Pitts by telephone. On November 16, 2005, they sent a certified letter to Pitts requesting that he

return to them $11,032.14, but the letter was returned unclaimed. In that letter, the Peases stated

that it appeared to them that only the subsequent check for $2,800 was used to purchase the

materials that were on their property.




                                               -4-
                                            II. Analysis

       Code § 18.2-200.1 provides that a person is guilty of construction fraud if he obtains an

advance of money or other thing of value with fraudulent intent upon a promise to perform

construction and fails to perform that promise. The elements of construction fraud are

(1) obtaining an advance of money, (2) a fraudulent intent at the time the advance is obtained,

(3) a promise to perform construction or improvement, (4) a failure to perform, and (5) a failure

to return the advance within fifteen days of a request to do so by certified mail. Klink v.

Commonwealth, 12 Va. App. 815, 818, 407 S.E.2d 5, 7 (1991). “The time for determining

fraudulent intent is the time at which the defendant procured the advance.” Rader v.

Commonwealth, 15 Va. App. 325, 329, 423 S.E.2d 207, 210 (1992). “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. “‘Intent is a state of mind that may be proved by an accused’s acts or

by his statements and that may be shown by circumstantial evidence.’” Wilson v.

Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995) (quoting Wright v.

Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993)).

       The Peases entered into the initial contract with Pitts, and because the contract required

them to pay for the materials “upfront,” they gave him a check for $11,032.14. A notation,

initialed by Pitts and Laurence Pease, was made on top of this contract stating, “Paid Material

money Suntrust check #125.” More than two weeks passed and no materials had been delivered

and no work had been done at the Peases’ home. The Peases entered into the second contract

with Pitts upon Pitts’s representation that they would be given credit for the $11,032.14 check

they previously paid for materials pursuant to the first contract.

       Pitts’s characterization on appeal of the second contract as an assumption of “debt” does

not negate the fact that Pitts had earlier taken the money and failed to purchase materials or

                                                -5-
begin the work, factors indicative of Pitts’s fraudulent intent when he entered into the initial

contract with the Peases. The fact that there were two contracts does not require that we view

each contract or transaction separately to determine whether each would independently prove

construction fraud, as appellant’s approach would have us do. The question is whether Pitts’s

conduct throughout the construction project constituted fraud on his part. Based upon the first

contract on behalf of A & P, of which Pitts was a partner, Pitts obtained an advance of

$11,032.14 that was never used for any significant amount of materials or labor or returned to the

Peases. The second contract states that the costs of the materials, $11,032.14, “will be paid

upfront.” On the top of the contract, Pitts wrote “Paid material check #125” and then he and

Laurence Pease initialed this notation. By his actions, Pitts obtained an advance of money for

the materials to do the work for the Peases. Pitts’s representation that he was accepting the

$11,032.14 check as payment “upfront” for the materials was a misrepresentation that caused the

Peases to enter into the second contract with Pitts. Pitts entered into the second contract

knowing he had been advanced the money and did not then have the money to buy the materials

and complete the work. These facts are sufficient to prove Pitts’s fraudulent intent. See

Mughrabi v. Commonwealth, 38 Va. App. 538, 548, 567 S.E.2d 542, 547 (2002) (fraudulent

intent is established when contractor receives an advance for supplies that were never

purchased).

       Also, Pitts’s fraudulent intent was further evidenced by his representation that he needed

an additional $2,800 to pay for the truck to transport the building supplies. While the evidence

proved that the check was written directly to the building supply company and that Pitts used this

additional money to buy materials, he had requested that Gail Pease write the check to him.

Although Pitts had represented to the Peases that the materials had been paid for, the Peases

determined that this representation was false. Pitts worked on the job only two days, and never

                                                -6-
returned, and could not be reached by telephone or certified mail. Pitts’s lack of communication

with the Peases is further evidence that he never intended to complete the contract. See Norman

v. Commonwealth, 2 Va. App. 518, 521, 346 S.E.2d 44, 46 (1986) (defendant’s failure to contact

client to tell him that financial problems prevented him from fulfilling contract is indicative of

fraudulent intent).

       For these reasons, the evidence was sufficient to prove beyond a reasonable doubt that

Pitts received an “advance,” that he procured the advance with a fraudulent promise, and that he

failed to make good on the promise. We affirm the trial court’s judgment.

                                                                                           Affirmed.




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