Larry Dale Sams v. Commonwealth ( 1997 )

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
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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
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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
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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
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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.
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