                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia


LARRY DALE SAMS
                                        MEMORANDUM OPINION * BY
v.       Record No. 1007-96-2        JUDGE JOHANNA L. FITZPATRICK
                                             APRIL 1, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge
           (Frederick T. Heblich, Jr.; Parker, McElwain &
           Jacobs, P.C., on briefs), for appellant.
           Appellant submitting on briefs.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     On January 31, 1996 and April 3, 1996, Larry D. Sams

(appellant) was convicted of two counts of unlawfully and

feloniously practicing a profession or occupation without first

obtaining a valid license or certificate, a third or subsequent

offense.   On appeal, he contends that the trial court erred

because: (1) the evidence failed to prove he was practicing the

occupation of building contractor; (2) he was exempt from the

licensing requirements because he was not an "owner-developer";

(3) the felony enhancement provisions were inapplicable to him;

and (4) the court abused its discretion in denying his motion for

a continuance.    Finding no error, we affirm.

     Appellant obtained two building permits from the Albemarle
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
County Inspections Department, in the name of "Exeter Homes," on

March 16, 1995 and June 27, 1995.      Neither appellant nor Exeter

Homes held a valid Class A contractor's license; however,

appellant listed "Mike Iacovacci" (Iacovacci) as the contractor

and included Iacovacci's contractor license number on the permit

applications.   Permits were issued to build two houses valued at

$160,000 and $220,000.   Neither of the houses was intended for

appellant's personal use.
     Jesse R. Hurt, Director of Inspections for Albemarle County,

(Hurt) discovered that the contractor's license number on the

permit applications did not belong to Exeter Homes.      He contacted

appellant and arranged a meeting to determine whether he had a

contractual agreement with Iacovacci.       On August 14, 1995,

appellant met with Hurt and produced a copy of a document dated

March 7, 1995, which he represented as an agreement between

Exeter Homes and Iacovacci.    Appellant told Hurt that he had

completed and signed the permit applications although he did not

have a license, and that the agreement was to cover both permits.

At trial, appellant admitted that the March 7, 1995 "agreement"

had been back-dated, and that it was produced because he had an

oral agreement with Iacovacci prior to being questioned about the

permits by Hurt.
                              SUFFICIENCY

     When a defendant challenges the sufficiency of the evidence

on appeal, the appellate court must view the evidence and all




                                   2
reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth.   Stockton v. Commonwealth,

227 Va. 124, 145-46, 314 S.E.2d 371, 385, cert. denied, 469 U.S.

873 (1984).   See also Boblett v. Commonwealth, 10 Va. App. 640,

651, 396 S.E.2d 131, 137 (1990) (all evidence of the defendant's

that is in conflict with that of the Commonwealth's is discarded

in determining issues of sufficiency).

     Code § 54.1-111(A) provides in pertinent part:
               It shall be unlawful for any person,
          partnership, corporation or other entity
          to engage in any of the following acts:
          1. Practicing a profession or occupation
          without holding a valid license as
          required by statute or regulation. . . .

          Any person who willfully engages in any
          unlawful act enumerated in this section
          shall be guilty of a Class 1 misdemeanor.
          The third or any subsequent conviction
          for violating this section during a
          thirty-six-month period shall constitute
           a Class 6 felony.

(Emphasis added).   Code § 54.1-1100 defines "contractor" as:

          [A]ny person, that for a fixed price,
          commission, fee, or percentage undertakes to
          bid upon, or accepts, or offers to accept,
          orders or contracts for performing, managing,
          or superintending in whole or in part, the
          construction, removal, repair or improvement
          of any building or structure permanently
          annexed to real property owned, controlled,
          or leased by another person or any other
          improvements to such real property.

Code § 54.1-1100 defines in relevant part "owner-developer" as:

          [A]ny person who performs or supervises the
          construction, removal, repair or improvements
          of any building or structure permanently
          annexed to real property owned, controlled or


                                 3
           leased by him or any other improvements to
           such property when either (i) the total
           value of all such improvements to or upon
            any single parcel of land is $70,000 or more
           . . . .


     Appellant contends that the Commonwealth failed to prove

that his actions met the definition of a "contractor" and thus he

could not be in violation of Code § 54.1-111.   This contention

belies appellant's own admissions that he was the "contractor who

was going to build those houses . . ." and that he had no

license.   This testimony was sufficient for the trial court to

convict appellant of violating Code § 54.1-111.    Additionally,

the evidence was sufficient to prove he acted as a contractor

without possessing a license, as well as to prove he was acting

as an owner-developer without possessing a license.

     The evidence established that appellant:     (1) was not a

licensed contractor; (2) did not have a contractual agreement

with a licensed contractor; (3) was the person building the

home(s); and (4) intended to build two homes valued at $160,000

and $220,000 on the two parcels of land.   The evidence further

demonstrated that the land was owned by Exeter Homes and that

appellant was president of Exeter Homes.   Thus, appellant's own

conduct was such that he could be considered an owner-developer

or a contractor, either of which requires a license, and

appellant did not have a license.

     Exemptions from licensure are affirmative defenses subject

to proof by the defendant which must be raised during trial or



                                 4
are deemed waived.   See Evans & Smith v. Commonwealth, 226 Va.

292, 298, 308 S.E.2d 126, 130 (1983).   Appellant failed to

satisfy any of the three necessary elements of the claimed

exemption from "owner-developer" in Code § 54.1-1100.
                          OFFENSE DATE


     Appellant next contends that the felony enhancement should

not be applied to him because the date of sentencing for the

instant offenses was not within thirty-six months of his two

prior convictions.   However, Code § 54.1-111 uses the term

"conviction" rather than "date of offense."   Because the plain

language of a statute must be given its ordinary meaning, see
Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424

(1992), the date of conviction is the proper date to use in

determining whether the felony enhancement provisions of Code

§ 54.1-111 apply.

     Appellant was convicted of violating Code § 54.1-111 on

March 26, 1993 and June 28, 1995.    The trial court in the instant

case convicted appellant of the same offense on January 31, 1996

and April 3, 1996.   See Hill v. Hill, 227 Va. 569, 578, 318

S.E.2d 292, 297 (1984) (courts speak through their orders).    The

use of the term "conviction" clearly refers to the date of

conviction, and not the offense date or the date a final order is

entered.
                              CONTINUANCE


     The decision to grant or deny a continuance is a matter




                                 5
committed to the sound discretion of the trial court and may not

be disturbed on appeal unless the record affirmatively shows an

abuse of discretion.   Cherricks v. Commonwealth, 11 Va. App. 96,

99, 396 S.E.2d 397, 399 (1990) (citing Shifflett v. Commonwealth,

218 Va. 25, 30, 235 S.E.2d 316, 319 (1977)).

     At trial, appellant requested a continuance because

Iacovacci was not present.   When questioned by the trial court

why Iacovacci had not been subpoenaed, counsel responded, "Quite

frankly, Your Honor, when I was preparing this case for trial, I

did not think that this particular item [proof of Iacovacci's

license] was at issue in the case."   The Commonwealth objected,

and the trial court denied the continuance request.
     The evidence established that appellant failed to exercise

due diligence in obtaining the presence of the witness at trial.

He did not subpoena Iacovacci nor did he seek to obtain a

certified copy of Iacovacci's license.    See Code § 54.1-1112.

Further, appellant failed to establish he was prejudiced by the

denial of his motion for a continuance.   The asserted reason for

a continuance was established through other evidence, and the

trial court did not err in denying the motion for a continuance.
                                          Affirmed.




                                 6
