Opinion
Record No. 1441-92-3
Decided: July 26, 1994
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY, Thomas H. Wood, Judge
Affirmed.
John H. Kennett, Jr., for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his conviction of four counts of larceny in violation of Code Sec. 43-13, James C. Walker contends: (1) that the evidence was insufficient to support his convictions; (2) that even if he committed a crime, it was a single, ongoing crime, not four separate crimes; and (3) that the trial court improperly limited his cross-examination of the principal witness for the prosecution. We find no error and affirm the judgment of the trial court.
Code Sec. 43-13 provides, in pertinent part:
Any contractor . . . who shall, with intent to defraud, retain or use the funds, or any part thereof, paid by the owner . . . to such contractor . . . under any contract for the construction, removal, repair or improvement of any building . . ., for any other purpose than to pay persons performing labor upon or furnishing material for such construction, repair, removal or improvement, shall be guilty of larceny in appropriating such funds for any other use while any amount for which the contractor . . . may be liable or become liable under his contract for such labor or materials remains unpaid. . . .
The use by any such contractor . . . of any moneys paid under the contract, before paying all amounts due or to become due for labor performed or material furnished for such building or structure, for any other purpose than paying such amounts, shall be prima facie evidence of intent to defraud.
Our review of a claim of evidentiary insufficiency is governed by a well established standard.
When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. . . . The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
In December 1988, Walker contracted with Dennis Henderson to renovate a building owned by Henderson's partnership. Henderson agreed to pay Walker $241,708.12 in draws. Henderson also agreed to pay an additional $64,000 to Eavers Excavation Company and Blue Ridge Stone to upgrade the parking lot. Once the job began, Walker usually requested $9,000 draws or checks for specific amounts to pay particular invoices.
On December 28, 1988, Walker asked Henderson to write him a check for $8,996 for the purchase of tile. Walker told Henderson that Home Tile Company would give a discount if paid in advance. Home Tile supplied and laid the tile. Three months later, because of faulty installation, Henderson asked Home Tile to refund his money. Home Tile told Henderson that Walker had never paid for the tile or its installation. Rather, Walker deposited the check into his personal account and used some of the funds to pay personal expenses.
On May 2, 1989, Henderson's attorney met with Walker. The project was then behind schedule. Walker told Henderson's attorney that a bill from Lowe's for $600 was the only outstanding bill. In fact, six invoices for materials, totaling $16,000, were unpaid at that time. Walker never asserted that he needed additional money to cover his expenses or that he was working on a cost-plus basis.
On May 5, 1989, Walker presented Henderson eight invoices, totaling $38,058.92, from Eavers Excavation Corporation. Henderson told Walker that he would send Eavers a check directly. However, Walker asked Henderson to write the check to him so that he could pay Eavers. Henderson complied with this request but noted on the check that he intended it to cover the Eavers's bill. Walker paid Eavers only $22,334.63. He never paid the $15,724.29 balance. Walker claimed that he used the remainder of this advance to pay his workers. However, he deposited only $5,000 of this balance into his payroll account.
On June 1, 1989, Walker presented Henderson an invoice on his own billhead. It covered two items: (1) another bill from Eavers, for $18,138.16, for work on the parking lot, and (2) a bill from Blue Ridge Stone for $7,572.32. Walker pointed out to Henderson that the invoice from Blue Ridge Stone stated that if it was paid by June 2, 1989, $153.90 would be deducted. To take advantage of this discount, Henderson wrote Walker a check to cover these two bills and one other invoice. Walker never paid Eavers or Blue Ridge Stone for these charges.
In January 1989, Henderson paid Walker $9,800 to buy steel siding for the building's exterior. Walker priced the siding at Lowe's but placed no order. In May, when Henderson asked Walker about the siding, Walker told him that it had arrived, but Lowe's was keeping it in storage to avoid damage at the job site. On June 1, 1989, Walker arranged for a crew to install the steel siding on the following Monday. Henderson questioned how the siding could be installed because it had not arrived on the job site. On Saturday, Walker told Henderson that the siding was en route on a Lowe's delivery truck. However, Walker had neither ordered nor paid for the siding, and none arrived at the job site.
By June 1, 1989, Henderson had written Walker checks totaling $298,513.10. Walker converted $74,584.45 of these checks into cash, only $9,000 of which could be traced back into his business accounts. Walker deposited several of the checks directly into his personal checking accounts. He also transferred funds from his business account to his personal checking accounts to pay personal expenses.
Walker contended that his contract with Henderson was not for a fixed amount, but was on a cost-plus basis. He testified that he had applied all funds received from Henderson to expenses incurred in connection with the job. Indeed, he testified that although he had received $298,513.10, he had expended $302,775.04. He presented records in support of this claim, but his records were confusing. Many of his claimed expenditures did not match his checkbook or were not supported by receipts or canceled checks. The record disclosed that Walker was a previously convicted felon.
On June 12, 1989, Walker closed his business account. He did not use the proceeds to pay the outstanding material and labor bills. Walker admitted that he closed the account to prevent its seizure by Henderson. At trial, Walker sought to cross-examine Henderson about some tools, which he claimed Henderson had stolen from him, to show Henderson's bias. The trial court refused to allow questions about the specifics of this incident but ruled that Walker could explain to the jury why he thought the money belonged to him. The trial court also ruled that Walker could present evidence that pending civil litigation would resolve the matter. Walker accepted the trial court's ruling.
Henderson paid approximately $60,000 to complete the renovation of the building and faced approximately $70,000 in mechanics liens for work performed on the project but for which Walker never paid.
Walker first contends that, although the evidence provided prima facie proof that he violated Code Sec. 43-13, he sufficiently rebutted that presumption by proving that he used all of Henderson's money solely to pay for the project's material and labor. He argues that this showing relieved him of criminal responsibility. We disagree.
Walker's credibility was impeached by proof that he was a previously convicted felon. His testimony and his exhibits were far from conclusive. They were contradictory and, in some respects, unsupported by vouchers. All of this, together with uncontradicted evidence that Walker had failed to apply specific draws to the purposes for which he had specifically obtained them and had made false statements concerning the payment of bills, supports the jury's rejection of his evidence.
This case is controlled by the Supreme Court's decision in Overstreet v. Commonwealth, 193 Va. 104, 67 S.E.2d 875 (1951). The facts are similar. Overstreet contracted to make improvements and repairs to Horne's home for $2,600.
In August, 1949, [Overstreet] purchased material from Broaddus for use in the building contract with Horne, and in June, 1950, ten months thereafter, had paid no part of the bill, although he had received the sum of $2,400 upon his contract. He obtained a check for $500, a part of the above sum, in October, 1949, upon the express representation that it was to be applied in part to the full payment of the account of Broaddus. He cashed that check promptly, and eight months thereafter had not paid Broaddus. He used or retained the $500, and there is no evidence that he made any payment for labor or material to anyone after its receipt.
Id. at 108, 67 S.E.2d at 877-78.
[R]eferring to a written memorandum made out by himself, [Overstreet testified] that he had paid out $1,828.36 for labor and $699.20 for material on the Horne job.
Id. at 106, 67 S.E.2d at 876.
[Overstreet] contends that there was no evidence to show that the money received by him from Horne was used for any other purpose than to pay for labor and material on the Horne contract, and that his statement that he paid out for labor and materials $127.56 more than he received from Horne should have been accepted as true. He argues that the burden was on the Commonwealth to prove that he used the money for some other purpose.
Id. at 107, 67 S.E.2d at 877.
[T]he facts make it clear that [Overstreet] used money paid to him under his contract . . . before paying all amounts due for material furnished. . . . Since it was his duty to apply them . . . to the payment of labor and material . . . it became his duty to disclose the nature of his expenditures and to whom payments were made. That information was peculiarly within his knowledge. . . . His failure to disclose the items for which the funds were spent, . . . creates a presumption of fact that they were used for some purpose other than paying amounts due or to become due for labor performed or material furnished. Under the statute this constituted prima facie evidence of intent to defraud. It then became incumbent upon him to produce evidence to the contrary. It is apparent, under the circumstances recited, that [Overstreet's] testimony was of such a nature as to be inconsistent with his innocence, and that the trial court was justified in refusing to accept it as reflecting the true situation.
Id. at 108-09, 67 S.E.2d at 878.
Walker next contends that the evidence, even if sufficient, fails to prove him guilty of more than one ongoing crime. We disagree. The Commonwealth proved four distinct occasions of misappropriation: (1) December 28, 1988; (2) January 1989; (3) May 5, 1989; and (4) June 1, 1989. Code Sec. 43-13 proscribes not the failure to perform a job, but the misappropriation of money. See Overstreet at 111, 67 S.E.2d at 879. Each instance of misappropriation was a violation of the statute.
Finally, Walker contends that the trial court abused its discretion by curtailing his cross-examination of Henderson concerning Henderson's alleged theft of Walker's tools and his ramming of Walker's truck.
[W]e recognize that cross-examination of prosecution witnesses regarding a potential motive for providing testimony favorable to the Commonwealth is "fundamental to the truth-finding process [and] is an absolute right guaranteed to an accused by the confrontation clause of the Sixth Amendment." A trial court, however, "may exercise discretion to see that the right of cross-examination is not abused [once] the right to cross-examination has been fairly and substantially exercised."
Williams v. Commonwealth, 4 Va. App. 53, 77-78, 354 S.E.2d 79, 93 (1987). However, while denying the specific line of cross-examination, the trial court explained the manner in which it would permit Walker to address the desired area of proof. Walker did not object to this ruling. We perceive no miscarriage of justice. Therefore, we will not address this issue on appeal. Rule 5A:18.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.