COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Alst on and Senior Judge Clements Argued at Alexandria, Virginia

THEODORE JAMES SHUCK MEMORANDUM OPINION ∗ BY v. Record No. 1186-09-4 J UDGE JAMES W. HALEY, JR. SEPTEMBER 28, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF WARREN COUNTY Paul M. Peatross, Jr ., Judge Designate Anne M. Williams (W illiam August Bassler, PLC, on brief), for appellant. Karen Misbach, Assistant At torney General II (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

I. INTRODUCTION Appealing his conviction for constructi on fraud in violati on of Code § 18.2-200.1, Theodore James Shuck argues (1) the evidence failed to prove he acted w ith fraudulent intent and (2) the trial court erred in admitting evidence that a letter was sent by certified mail in the absence of documentation showing a certified mailing. We affirm.
II. BACKGROUND In August 2004, the victim (“the buyer”) asked Shuck to replace a home furnace. 1 Shuck requested a down payment of $2,500 to order the replacement, with an additional $500 to be paid
later for labor. These terms were contained in a written contract signed by the buyer and Shuck on August 17, 2004. The contract also called for rem oval of the old furnace and provided fifteen

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 We refer to the victim as “the buye r” in order to protect his privacy.-2- days to complete the project. The contract was written on the printe d form of Professional Heating and Air Conditioning, which was Shuck’s em ployer. Nonetheless, the buyer gave Shuck a check, written to Shuck personally, for the down payment. After one to two weeks, the buyer had not hear d from Shuck. He tried to contact him by phone several times and finally succeeded. Th e buyer requested Shuck to remove the old furnace, but Shuck stated the furnace had to be removed in pieces becaus e of its size. After another brief interval, Shuck disassembled the furnace, though he did not remove it. The buyer continued to try to contact Shuck, largely without success. 2 The buyer later called another company, which completed the job. The buyer then sought to find Shuck to obtain a refund, but did not succeed. The buyer obtained an uncollect ible judgment against Professional Heating and Air Conditioning. In June 2006, the buyer sent Shuck a letter by certified mail, return receipt requested, demanding return of the $2,500 advance. 3 At trial, the buyer testif ied without objection that he sent the letter by cer tified mail, although the return receipt documentation was not introduced. The letter was admitted without objection. Shuck testified he did not deposit the down pa yment with his employer, but rather cashed the personal check, using the funds to order a new furnace and to pay for other materials and labor. However, he claimed, before the cont ract was completed, the buyer called Professional Heating and Air Conditioning and expressed dissatisfa ction. Shuck testified he believed that the buyer had fired him. Shuck also testified the furnace arrived at his supplier soon after the

2 The buyer testified that after Shuck disassemb led the furnace, the buyer “tried and tried and tried” to contact Shuck without success. Ye t the buyer also stated he “mentioned to [Shuck] something about getting it out of there.” Thus , it appears the buyer had some limited success in contacting Shuck.

3 It is unclear from the record whether the buyer filed suit or sent the letter first.-3- buyer’s phone call. Shuck claimed he did not re trieve it because he thought the buyer did not want it. Shuck testified that when he lear ned the buyer desired a refund, he called him and explained he could not immediately return the money since it had been given to the furnace supplier. After a bench trial, the court f ound Shuck guilty. He now appeals.
III. ANALYSIS
A. Fraudulent Intent Shuck maintains the evidence was insufficient to prove he had a fraudulent intent when he made the contract with the buyer. We disagree. On appeal, we view “the evidence in the light most favorable to the Commonwealth, the prevailing party in the circui t court, and we accord the Commonwealth the benefit of all reasonable inferences deducible from the evidence.” Britt v. Commonwealth , 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008). We ask only if “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). We “will affirm the judgment unless the judgment is plai nly wrong or without evidence to support it.” Bolden v. Commonwealth , 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). Code § 18.2-200.1 provides: If any person obtain from another an advance of money . . . with fraudulent intent, upon a pr omise to perform construction, removal, repair or improvement of any building or structure permanently annexed to real pr operty, or any other improvements to such real property . . . and fail or refuse to perform such promise, and also fail to substant ially make good such advance, he shall be deemed guilty of the larceny of such money . . . if he fails to return such advance within fifteen days of a request to do so sent by certified mail, return receip t requested, to his last known address or to the addre ss listed in the contract.-4- Whether the defendant acted with fra udulent intent depends on the facts and circumstances of each case. Klink v. Commonwealth , 12 Va. App. 815, 819, 407 S.E.2d 5, 8 (1991). We examine “the conduct and re presentations of the defendant.” Norman v. Commonwealth , 2 Va. App. 518, 519, 346 S.E.2d 44, 45 ( 1986). A factor probative of fraudulent intent is whether a defendant “did no thing in furtherance of fulfilling his promise.” Id. at 521, 346 S.E.2d at 46. A fact finder may al so infer from “evasive conduct and failure to communicate that [a defendant] never in tended to complete the” project. McCary v. Commonwealth , 42 Va. App. 119, 128-29, 590 S.E.2d 110, 115 (2003); see also Rader v. Commonwealth , 15 Va. App. 325, 330, 423 S.E.2d 207, 211 (1992) (finding that “Rader’s general lack of communication with the homeown ers about the problems with the project is further evidence that he did not intend to complete the contract”). The relevant time for fraudulent intent is the time when the defendant obtains the advance. Mughrabi v. Commonwealth , 38 Va. App. 538, 548, 567 S.E.2d 542, 547 (2002). Viewing the evidence in the light mo st favorable to the Commonwealth, Britt , 276 Va. at 573, 667 S.E.2d at 765, we conclude the eviden ce sufficed to support the conviction for construction fraud. 4

4 Although Shuck relies heavily upon Boothe v. Commonwealth , 4 Va. App. 484, 358 S.E.2d 740 (1987), where this Court found the evid ence insufficient to prove fraudulent intent, we find that case distinguishable. The Boothe Court noted that the c ontract there specified no completion date. Id. at 491, 358 S.E.2d at 744. Here the cont ract provided only fifteen days for completion. Furthermore, in Boothe the contract was apparently made directly with the defendant, or the company he ran as a formality. Id. at 488-89, 358 S.E.2d at 742-43. Although the defendant could not account for the victim’s advance payments, the contract did not prevent the defendant from immediately taki ng the money and freely spending it. Id. at 492, 358 S.E.2d at 745. In this case, while Shuck signed the co ntract, he acted as the agent of Professional Heating and Air Conditioning. Yet Shuck had the buyer’s check made out to him personally, not to the company. Shuck testified he cashed the check and did not deposit the proceeds with the company. Finally, in Boothe , the defendant suffered from the illness and death of his father and weather conditions unconducive to work. Id. at 491, 358 S.E.2d at 744-45. This case lacks comparable reasons for not completing the contract.-5- First, for one to two weeks after the signing of the contract, despite several calls, the buyer had not heard from Shuck. Once contacted, Shuck disassembled the furnace, but did not remove it, and did no further work. The buyer then continued to attempt to contact Shuck, largely without success. Second, Shuck never completed the work. The contract, signed on August 17, 2004, provided Shuck had fifteen days to complete it. Beyond disassembling the furnace, Shuck did no other work on the project. Third, although the contract was on lette rhead of Professional Heating & Air Conditioning and Shuck testified he worked fo r the company, Shuck had the buyer write the check to him personally. Shuck admitted he did not deposit the money with the company. That Shuck had the money given to him supports an intent to defraud. Cf. Orr v. Commonwealth , 229 Va. 298, 301, 329 S.E.2d 30, 32 (1985) (stating that if the defendant “had meant to defraud . . . he would have appropriated the proceeds of th eir check to his own use”). Although Shuck testified he called the buyer and explained he could not immediately provide a refund because the advance was with the furnace supplier, the buye r testified he tried to locate Shuck about the matter without success. The buyer eventually fi led suit against Professional Heating and Air Conditioning. The fact finder could infer from these events a desire by Shuck to retain the money, thereby providing additional ev idence of an intent to defraud. Finally, the fact finder, ha ving observed the testimony of the buyer and Shuck, could choose to credit the buyer’s te stimony, reject Shuck’s, and regard Shuck’s testimony as affirmative evidence of his guilt. Covil v. Commonwealth , 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004). The trial court specifically stated Shuck’ s evidence was “not the evidence of what came forth” and that it had “some credibility problems” with Shuck.-6- B. Certified Mail Shuck maintains the trial court erred in admitting the buyer’s testimony that he mailed a letter demanding a return of f unds by certified mail, arguing th is evidence violated the best evidence rule because the return receipt documentation was not introduced. We find Shuck has not preserved this argument for review. Furthermor e, to the extent Shuck contends the evidence was insufficient regarding certified mail, we hol d this falls outside th e question presented and, accordingly, do not address it. At trial, the buyer testified w ithout objection that he mailed the letter by certified mail. Defense counsel also did not object to the lette r’s admission. Therefore, arguments concerning error in admitting this evidence were not preserved for appeal. 5 Rule 5A:18. Although Shuck maintains in his argument on brief that the evidence was insufficient concerning proof of certified mail, this ar gument was not contained within his question presented. Shuck’s question presented asks: “D oes the best evidence rule require the production of a document memorializing the transaction that a demand to return advanced funds was sent certified mail, return receipt requested, pursu ant to Virginia Code § 18.2-200.1?” The best evidence rule concerns the admissibility of ev idence, not the sufficiency of evidence. See Bradshaw v. Commonwealth , 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993). Shuck’s question addresses only the admissibility of evidence. The heading corresponding to this question, likewise, pertains only to admissibility: “The trial court erred in admitting a witness’ testimony alone as proof that a demand to return advanced funds was, in fact, sent by certified mail as required by Virgin ia Code § 18.2-200.1 (1950).”

5 Objections to the admissibility of evidence mu st be made when the evidence is offered. Kondaurov v. Kerdasha , 271 Va. 646, 655, 629 S.E.2d 181, 185 (2006).-7- Under Rule 5A:12(c), this Court would onl y consider errors assigned in questions presented. See Painter v. Commonwealth , 47 Va. App. 225, 235-36, 623 S.E.2d 408, 413 (2005). Nonetheless, we may not invoke this rule to prevent consideration of an appeal “without considering whether a party’s failur e to adhere strictly to the rule ’s requirements is insignificant, or so substantial as to preclude the cour t’s addressing the mer its of the case.” Moore v. Commonwealth , 276 Va. 747, 753, 668 S.E.2d 150, 154 (2008). Arguments concerning the admissibility of evid ence and the sufficiency of evidence raise different legal issues. “The admissibility of evid ence and the sufficiency of evidence are distinct issues.” Banks v. Mario Indus. of Va., Inc. , 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007). “There is simply a different legal analysis involved in determining the admissibility of the evidence as opposed to its sufficiency to prove an element of the offense.” Bowling v. Commonwealth , 51 Va. App. 102, 107, 654 S.E.2d 354, 356-57 (2007). Given the significantly different legal quest ions involved between admissibility and sufficiency, we hold Shuck’s arguments concerni ng sufficiency significantly deviate from the question presented. Moreover, the Commonwealth seeks enforcement of the Rule 5A:12(c) issue, which constitutes an important concern. See Moore , 276 Va. at 756, 668 S.E.2d at 155. Accordingly, we do not address Shuck’s sufficiency arguments. For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed.