COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Wi llis and Senior Judge Cole Argued at Rich mond, Virginia

GREGORY LELAND RAYMER, S/K/A GREGORY L. RAYMEUR MEMORANDUM OPINION * BY v. Record No. 0586-99-2 JU DGE JAMES W. BENTON, JR. APRIL 11, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Sh elton, Judge Linwood T. Wells, III, for appellant. Eugene Murphy, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. The trial judge convicted Greg ory L. Raymeur of two counts of fraudulently obtaining money upon a promise to perform construction. See Code § 18.2-200.1. Raymeur cont ends the evidence was insufficient to support th e convictions. We disagree and affirm the convictions.

I. The evidence prov ed that on August 28, 1996, Raymeur contracted with Ch arles Hall to re place the vinyl si ding on Hall's house. Hall, wh o had hired Raymeu r in the past to perform work, gave Raymeur a check for $1,000 as "a do wn payment" on thecontract price of $1,6 00. The contract stip ulated that Raymeur would begin the pr oject September 23, 1996, and co mplete it in September. Both parties testif ied that meant Se ptember 1996. Raymeur never re turned to repl ace the siding on the house. Hall made telephon e calls to Raymeur an d went to Raymeur's residence. He received no responses. On December 3, 1997, Hall sent to Raymeur at the address list ed on the contra ct, a letter by certified mail demand ing his money. Raymeur did not respond. The evidence also pr oved that in August 1996 Raymeur agreed to replace a piece of siding on Fran Mena's house. Me na gave him a check for $375, the agreed costs, to purc hase new siding and for his labor. Raym eur nailed the existing pi ece of siding onto the house and never re turned to instal l new siding. Af ter Mena left messages on Raym eur's answering se rvice, Raymeur re turned her call and said that he had pr oblems with his employees. He promised to complete the job. He never did. In Februa ry 1998, Mena sent a certified lett er to Raymeur. The post office returned the unclaimed lett er to Mena. Raymeur cashed both checks. He te stified that he purchased materials for both projects but had proble ms with hi s employees and his truck. He denied receiv ing the letters from Hall and Mena. Raymeur also testified that he has been incarcerated since July 10, 1997, for cr imes arising out of similar cons truction agreements. Explaining this failure to comp lete the two projects in the year that laps ed before he was inca rcerated, Ra ymeur said

- 2 -he "was running behind on other jobs." Raymeur further te stified that he was behind on several jo bs because of hi s incarceration, difficulties with his workers, and problems with his truc k. While in jail, Raymeur obtained work release status to complete other projects that he had fa iled to perform. The trial judge convicted Ra ymeur on bo th counts.

II. Code § 18.2-200.1 provides as follows: 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. As we ruled in Klink v. Commonwealth , 12 Va. App. 815, 407 S.E.2d 5 (1991), this statute 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

- 3 -certified mail" to the defendant's last known address or his address listed in the contract. Id. at 818, 407 S.E.2d at 7. Raymeur contends the Commonwealth failed to prove he had fraudulent intent when he obtained the advances and also failed to prove he did not return the money advance within 15 days of a request to do so by certified mail. In determining "whether fraudulent intent exists, the Court must 'look to the conduct and representations of the defendant.'" Rader v. Commonwealth , 15 Va. App. 325, 329, 423 S.E.2d 207, 210 (1992) (citation omitted). The evidence proved that when Raymeur received money from Hall, he promised to begin and complete the installation of siding during the next month. He also received payment from Mena and promised to replace her siding. Although a substantial time had lapsed without any work, Raymeur failed to respond to contact from both homeowners. Indeed, Raymeur never returned to do any of the work he promised to complete. "The use of false statements to induce someone to enter into a contract can be persuasive evidence of fraudulent intent." Id. at 330, 423 S.E.2d at 210. Moreover, the trial judge could infer intent to defraud from Raymeur's failure to do anything in furtherance of his promise to perform after he received payment. See Norman v. Commonwealth , 2 Va. App. 518, 521, 346 S.E.2d 44, 46 (1986). The trial judge also could consider as evidence tending to prove intent to defraud Raymeur's pattern of conduct regarding Hall and Mena, who were

- 4 -neighbors, and others. See Hubbard v. Commonwealth , 201 Va. 61, 67, 109 S.E.2d 100, 105 (1959). These facts were sufficient to prove beyond a reasonable doubt Raymeur's fraudulent intent. In addition, the evidence proved that Hall and Mena sent certified letters, with return receipts requested, to Raymeur. Both Mena and Hall used the address that appeared on Raymeur's contract with Hall. No evidence tended to prove that the address was not Raymeur's last known address. Accordingly, the trial judge had sufficient evidence to prove beyond a reasonable doubt that both Hall and Mena requested return of their payments "by certified mail, return receipt requested, [sent] to [Raymeur's] last known address or to the address listed in the contract." Code § 18.2-200.1. For these reasons, we affirm the convictions. Affirmed

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