Opinion
Record No. 1188-92-2
December 28, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES M. LUMPKIN, JUDGE.
Jody Ann Jacobson Pruett, Assistant Public Defender (David J. Johnson, Public Defender; Office of the Public Defender, on brief), for appellant.
Kathleen Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Albert Gilyard was tried for and convicted of obtaining an advance of money with fraudulent intent upon a promise to perform a roof repair to a building, failing to perform the promise, and failing to make good the advance of money, as proscribed by Code § 18.2-200.1. Gilyard contends that the trial judge erred (1) in allowing testimony of a common plan or scheme, and (2) in finding that the evidence proved beyond a reasonable doubt fraudulent intent. We affirm the conviction.
I.
The evidence proved that on August 12, 1991, Walmsley Baptist Church contracted with Gilyard to remove shingles from the church's roof and install new shingles. The contract required the church to pay Gilyard $6,700 for the project. The contract further provided that work would commence on August 12, 1991, and would be completed within ten working days. When the contract was signed, Donald Turner, the church's pastor, paid Gilyard an advance of $3,500, as provided in the contract.
Turner testified that on the day the contract was signed, Gilyard delivered a load of shingles to the church and did not return to the job site for several weeks. Gilyard began the work on September 4 after Turner and other members of the church contacted Gilyard by telephone and in person. Turner further testified that Gilyard and his helpers worked on the roof only three days. On the third day, Turner paid Gilyard an additional $850 because Gilyard said he needed to pay his workers so that they would return to the job. During the middle of the third day of work, Gilyard and his worker left after Gilyard was given the additional $850. They did not return.
Turner testified that he made no representations to Gilyard concerning the condition of the roof. In particular, Turner denied telling Gilyard that the roof contained only one or two layers of shingles. He also denied that after Gilyard began work on the roof Gilyard told him that the multiple layers of shingles on the roof would increase the cost and time involved. Turner also denied threatening Gilyard or causing Gilyard to delay or fail to complete the work.
When Gilyard did not complete the work, Turner sent a demand by certified letter. Turner then hired another contractor to complete the roof. The contractor who completed the roof testified that Gilyard had completed one-sixth of the work required to remove and replace the shingles on the roof.
Over Gilyard's objection, the Commonwealth presented testimony of two homeowners who also paid Gilyard for work he failed to complete. Ruby Harshman testified concerning a contract with Gilyard to screen in her sun deck and to paint the inside and outside of her house. Harshman testified that after she gave Gilyard a check, which he said he needed for more supplies, he left and did not screen Harshman's sun deck. Harshman testified that she had to hire someone else to complete the work that Gilyard failed to complete and to re-do the work that Gilyard had done. She was unable to reach Gilyard in order to request that he return a portion of her money.
Bonita Poats testified that she contracted with Gilyard to paint the inside of her house, to clean brick and aluminum, to cover the garage with vinyl siding, and to install a new kitchen floor. Poats paid Gilyard and he failed to complete the improvements as provided in the contract. Poats testified that she saw Gilyard several times after she paid him and that each time he said he would return "tomorrow" to do the work. Poats stated that she paid another contractor to finish the work and did not receive reimbursement from Gilyard for the unfinished work.
Three of the persons that Gilyard employed to work on the church roof testified in Gilyard's defense. Dwayne Gregory testified that he worked on the church roof every day for over two weeks and that three loads of shingles were stored in the church. He testified that Turner informed him that the roof had only one or two layers of shingles, but that the roof actually had three or four layers. The additional layers meant more work would be required. Gregory further recalled that Turner and Gilyard had a disagreement when the roof was about one-half completed. After the disagreement, he and the other workers stopped work on the roof.
Ester Chambliss testified that she purchased shingles for Gilyard. She estimated that Gilyard worked on the project for three weeks.
Michael Thomas testified that he worked on the roof two and one-half weeks. He testified that, although Turner told them the roof had one layer of shingles, it actually had three or four. He testified that it would take almost twice as long to remove three or four layers. Thomas described a confrontation in which Turner stopped Gilyard's automobile, used abusive language toward Gilyard, and showed Gilyard a bag that was in his trunk. Thomas stated that the workers did not return to the church because Turner threatened Gilyard.
Gilyard testified that he began work on the roof the day after the contract was signed and continued to work on the roof for three weeks. He testified that the $3,500 advance was used to pay for shingles, felt paper, boxes of nails, and pipe covers. He stated that when he learned the church had three to four layers of shingles, he told Turner that the job would take longer to complete and cost more. Gilyard testified that Turner agreed to pay more money if necessary and did pay an additional $850 for the increased labor costs.
Gilyard also testified that one day when he was going to the church, Turner inexplicably used his vehicle to stop Gilyard's truck, that Turner cursed him, and that Turner showed Gilyard a gun and voodoo doll in Turner's trunk. Gilyard testified that after he saw the gun and voodoo doll he told Turner that he would not return to the church. Gilyard admitted that he did not return any of the money that was advanced and said the money had been used to purchase materials for the roof and to pay for labor. Gilyard admitted that he failed to complete the roof and estimated that one-half of the church roof had been completed.
Gilyard further denied that he failed to complete the work for Harshman and Poats. He testified that his contract with Harshman was to screen in her porch. Gilyard stated that the electric company wanted $4,000 to relocate the power box that had to be relocated before the sun deck could be screened in. He testified that after Harshman learned of that expense they agreed that Gilyard would not screen in the porch but would do other work instead. Gilyard testified that he completed the work and, although he had not contracted to clean the inside of Harshman's home, paid for the house to be cleaned.
Gilyard testified that after he completed the work on the Poats house, other men who delivered Poats' new refrigerator tore the kitchen floor. Gilyard further testified that Poats paid him the final $300 because he did very good work.
On this evidence, the trial judge, sitting without a jury, convicted Gilyard.
II.
Prior to trial, Gilyard objected to the Commonwealth's evidence concerning Gilyard's failure to complete improvements for Harshman and Poats. The Commonwealth argued that the two witnesses contracted with Gilyard contemporaneously with Gilyard's dealings with the church and that the witnesses would tend to prove that Turner's acceptance of advance money and failure to complete the work were not isolated events and indicated fraudulent intent.
In a case involving proof of fraudulent intent, the Supreme Court of Virginia stated: "'[W]here 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' including evidence of similar frauds." Brooks v. Commonwealth, 220 Va. 405, 407, 258 S.E.2d 504, 506 (1979) (quoting Bourgeois v. Commonwealth, 217 Va. 268, 273, 227 S.E.2d 714, 718 (1976)). See also Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105 (1959). Consistent with that ruling, this Court, in a case that involved a conviction under Code § 18.2-200.1, allowed proof of "circumstance[s] that the fact finder could consider, along with [the accused's] other conduct and false representations, to prove his intent." Rader v. Commonwealth, 15 Va. App. 325, 331, 423 S.E.2d 207, 211 (1992). This Court also relied upon the following general principles:
"Evidence which 'tends to cast any light upon the subject of the inquiry' is relevant." "The test establishing relevancy is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establish a fact in issue." Admissibility of evidence is an issue left to the discretion of the trial court, and unless the appellant proves an abuse of discretion, no error will lie.
Id. (citations omitted).
Thus, whether the testimony of the homeowners was relevant depended upon the determination whether it "tend[ed] to cast any light upon the subject of the inquiry." McNeir v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165, 169 (1953). We conclude that the trial judge did not err in ruling that the evidence tended to cast light on Gilyard's business practices and intent when accepting advances of money. Moreover, the testimony of the two homeowners was not rendered inadmissible merely because it proved conduct that did not rise to the level of criminal conduct. Proof of non-criminal misconduct is also admissible. See Coe v. Commonwealth, 231 Va. 83, 87-88, 340 S.E.2d 820, 823 (1986). Accordingly, the trial judge did not err in admitting the testimony as evidence of Gilyard's intent.
III.
The offense proscribed by Code § 18.2-200.1 consists of 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). Gilyard claims only that the Commonwealth failed to prove that he harbored a fraudulent intent when he obtained the advances of money.
Fraudulent intent may be evidenced through the conduct and representations of the defendant. Cunningham v. Commonwealth, 219 Va. 399, 402, 247 S.E.2d 683, 684 (1978). Although Gilyard disputed much of the testimony of the prosecution's witnesses, the trial judge was not required to accept his explanations and disbelieve the other witnesses. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). The credibility of the witnesses and the weight accorded their testimony are matters solely for the fact finder. Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). Referring to Gilyard's demeanor while testifying and his record of convictions on three felonies and four misdemeanors of moral turpitude, the trial judge expressly stated that he did not find Gilyard to be credible.
Viewed in the light most favorable to the Commonwealth, the party that prevailed at trial, id., the evidence proved that after Gilyard received the first advance of $3,500 he delivered shingles to the church and then disappeared for almost three weeks. He had contracted, however, to begin work on August 12, the day he signed the contract and to complete the contract within ten days. Gilyard returned to the church with his workers only after several church members sought him out and repeatedly telephoned him. When he returned, Gilyard worked only three days on the roofing project before requesting a second advance of $850. Despite his promise to return the next day, Gilyard took the second advance of money, left with eleven bundles of shingles in his truck and never returned. Gilyard completed only one-sixth of the roof and left the building exposed to the weather.
The trial judge could have concluded beyond a reasonable doubt that Gilyard's failure to begin the work on the day he received the advance money proved he took the money with the intent not to perform the contracted work. His failure to return until three weeks had passed and only after being contacted several times supports that conclusion. Gilyard's request for an additional advance and failure to perform after receiving that advance were consistent with a pattern of business dealings and supported the conclusion of fraud. Simply put, Gilyard's conduct and statements were sufficient indicia of his intent to support the trial judge's finding beyond a reasonable doubt of fraudulent intent.
Affirmed.