Kader Mustafa Murgrabi, s/k/a, etc v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
KADER MUSTAFA MUGHRABI, S/K/A
KHADER MUSTAFA MUGHRABI
OPINION BY
v. Record No. 1946-01-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Charles E. Haden (G. Curtis Overman, Jr., on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Kader Mustafa Mughrabi (appellant) appeals his bench trial
conviction of two counts of construction fraud in violation of
Code § 18.2-200.1. On appeal, he contends the trial court erred
in (1) allowing testimony about prior unadjudicated "bad acts,"
and (2) denying a motion to strike and motion to set aside the
convictions because the Commonwealth failed to prove appellant
intended to defraud the victims. For the following reasons, we
affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26
Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on August 2, 1999,
Paula Johnson and her husband, Rubert Johnson, Jr. (the
Johnsons) entered into a construction contract with appellant
for work on their house. At the time the contract was
negotiated, appellant told the Johnsons he had nine crews
working for him. The Johnsons gave him an advance of $1,000 to
pay for a patio door that appellant claimed had to be ordered
and would be delivered in about four weeks. The project was
supposed to start upon receipt of the door, which was never
delivered.
Mrs. Johnson did not hear from appellant for over a month
and called him numerous times about his failure to do the work.
She called his business and cell phone numbers, but appellant
did not return her calls. On September 10, 1999, appellant
called and told her he had been delayed because of the weather,
but work would begin on Tuesday or Wednesday of the next week.
However, he failed to appear on those days. Mrs. Johnson
continued to call appellant on his home and business phones, but
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a few weeks later, the business phone was disconnected. On
October 17, 1999, appellant called the Johnsons and told them
that Scott Fuller (Fuller) would contact them concerning the
job. Fuller arrived but did not have the door and did not begin
work. The Johnsons sent a certified letter to appellant
demanding their money be returned. Appellant promised to give
the advance back but failed to do so.
Linda Ware (Ware) testified that on August 5, 1999, she and
her fiancée, Fred Dylla (Dylla), entered into a construction
contract with appellant to have a porch built on their house.
The parties agreed on a starting date of September 7, 1999.
Appellant also told Ware that he had several crews working for
him. Ware and Dylla gave him a check for $1,350 because
appellant said he needed it "as good faith" and to purchase
building supplies to start the porch.
Due to bad weather, appellant did not begin work on the
porch on September 7 but told Ware he would start the job
September 14. However, no supplies arrived, and appellant did
not begin work on that date. When Ware called, appellant said
the work would begin September 23. However, he did not begin
work on that date either, and Ware's later phone calls to him
were not returned. Richard Elias, a subcontractor, stated that
he went with appellant to the Ware house to consider doing the
work, but declined the job. Ware was unable to get a response
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from appellant about the work delays and sent two certified
letters to him requesting a return of the advance, but appellant
never returned the money.
Robert Pritchard (Pritchard), a state investigator for the
Department of Professional Occupational Regulations, testified
that in June 1999, two months before appellant entered into the
Johnson and Ware contracts, he met with appellant concerning ten
to twelve complaints against Gada Enterprises, appellant's
business.
Pritchard stated that:
[O]n or about June the 30th, 1999, I
interviewed [appellant], and we discussed
the requirements of the Board for
Contractors for those nine elements that
should be – as [sic] a minimum should be in
the contract. As I recall, [appellant] was
not familiar with the regs [sic] at that
time, but I did bring it to his attention
those requirements, especially the fact of
the start date and estimated completion
date.
Appellant objected when the Commonwealth questioned
Pritchard about whether he discussed with appellant the
regulation dealing with the return of advances for work not
started or completed. The trial court allowed Pritchard to
testify, stating, "I think it's proper to establish the history
of action in that regard because it shows knowledge and intent."
Pritchard stated:
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The issue that I discussed with [appellant]
dealt with funds not returned to customers.
And I asked [appellant] why the funds were
not being returned to customers, because he
couldn't provide the materials or products
or didn't perform the labor, and his
response to me was that it was a cash flow
issue, that he could not return the funds at
this time because it would affect his
business. I asked him if he had sufficient
funds available to return the funds that I
was discussing with him. He indicated he
had seven thousand dollars in his checking
account, forty thousand dollars in assets in
his firm.
And I again phrased the question, "If you
have the assets or the funds, why don't you
return those to the people who are due
those?" [Appellant] again said that it
would affect his business, affect his cash
flow and he was not going to do it until he
could safely do it to protect his business.
Victoria Carney, appellant's marketing manager, testified
that appellant was having cash flow problems in July 1999 and
was unable to complete ongoing projects. He continued to accept
new contracts and deposits in August 1999 even though he was two
months behind in his work.
Appellant testified that he did not intend to defraud the
Johnsons, Ware and Dylla. He stated that he was delayed by
inclement weather and a heart attack but intended to complete
the projects. Appellant also admitted he was running two to
three weeks behind on his contracts and that he had not paid
himself a salary in four months.
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II. PRIOR "BAD ACTS" TESTIMONY
Appellant first contends the trial court erred by allowing
Pritchard, the Department of Professional Occupational
Regulations' investigator, to testify that he spoke to appellant
in June 1999 about his failure to return other advance payments,
to timely begin and complete projects, and other regulatory
violations. He argues that this evidence of "prior bad acts"
should have been excluded. We disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d
820, 823 (1986)). "A trial court 'by definition abuses its
discretion when it makes an error of law.'" Shooltz v. Shooltz,
27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon
v. United States, 518 U.S. 81, 100 (1996)).
"Generally, evidence of other offenses is inadmissible if
it is offered merely to show that an accused was likely to
commit the crime for which he is being tried. There are,
however, well-established exceptions to the general rule."
Cheng v. Commonwealth, 240 Va. 26, 34, 393 S.E.2d 599, 603
(1990). "The exceptions to the general rule are numerous, and
evidence of other crimes or other bad acts is admissible when
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relevant to prove a material fact or element of the offense."
Jennings v. Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755
(1995) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
176 S.E.2d 802, 805 (1970)).
Evidence of other offenses is admitted if it
shows the conduct and feeling of the accused
toward his victim, if it establishes their
prior relations, or if it tends to prove any
relevant element of the offense charged.
Such evidence is permissible in cases where
the motive, intent or knowledge of the
accused is involved, or where the evidence
is connected with or leads up to the offense
for which the accused is on trial.
Id. at 34, 393 S.E.2d at 603 (quoting Kirkpatrick, 211 Va. at
272, 176 S.E.2d at 805). "In order for evidence that the
accused has committed other crimes to be admissible, it need
only be relevant to prove a material fact or issue, and its
relevance must outweigh the prejudice inherent in proving that
an accused has committed other crimes." Wilson v. Commonwealth,
16 Va. App. 213, 220, 429 S.E.2d 229, 234 (1993) (citing Spencer
v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990)).
"'Where 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.'" Brooks
v. Commonwealth, 220 Va. 405, 407, 258 S.E.2d 504, 506 (1979)
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(quoting Bourgeois v. Commonwealth, 217 Va. 268, 273, 227 S.E.2d
714, 718 (1976)).
In the instant case, Pritchard's testimony that he had
discussed with the appellant, only two months before the
contracts at issue, his failure to return advanced funds or
complete contractual obligations to at least ten others is
clearly probative of appellant's state of mind and intent to
defraud the Johnsons, Ware and Dylla at the time he entered into
contracts with them. Appellant continued to enter construction
contracts with no specific start or end dates, took deposits for
items never delivered and failed to commence work. Pritchard's
testimony established that appellant had cash flow problems as
early as June 1999 but continued to follow the same pattern of
entering into contracts, retaining deposits and failing to
complete the work.
"Nevertheless, evidence of other crimes is permitted only
when 'the legitimate probative value outweighs the incidental
prejudice to the accused.'" Woodfin v. Commonwealth, 236 Va.
89, 95, 372 S.E.2d 377, 381 (1988) (quoting Lewis v.
Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)).
The evidence that appellant perpetrated more than one fraud
about the same time is relevant to show his fraudulent intent.
See Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105
(1959). The evidence outlined above was highly probative of his
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intent at the time the instant contracts were signed.
Consequently, any incidental prejudice inherent in the evidence
of the prior "bad acts" was outweighed by its probative value.
Thus, the trial court did not abuse its discretion by allowing
Pritchard to present evidence that was probative of appellant's
fraudulent intent.
III. INTENT TO DEFRAUD
Appellant next argues that the Commonwealth's evidence was
insufficient to prove he had the requisite intent to defraud at
the time the contracts were made. Appellant maintains the
Commonwealth's evidence merely shows that he failed to complete
the jobs on time and failed to return phone calls. Further,
appellant argues that he had credible explanations for the
delays because of the inclement weather and his heart attack.
We disagree.
In reviewing sufficiency of the evidence, "'the judgment of
the trial court sitting without a jury is entitled to the same
weight as a jury verdict.'" Saunders v. Commonwealth, 242 Va.
107, 113, 406 S.E.2d 39, 42 (1991) (quoting Evans v.
Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975)).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
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"Circumstantial evidence 'is as competent and is entitled
to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.'" Taylor v. Commonwealth, 33 Va. App.
735, 737, 536 S.E.2d 922, 923 (2000) (quoting Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). "The
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)
(internal citations omitted).
The credibility of a witness and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989). In its role of judging witness
credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt. See Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (citing Speight v. Commonwealth, 4 Va. App. 83, 88, 354
S.E.2d 95, 98 (1987) (en banc)).
Code § 18.2-200.1 provides, in pertinent part:
If any person obtain from another an advance
of money, merchandise or other thing, of
value, with fraudulent intent, upon a
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promise to perform construction, removal,
repair or improvement of any building . . .
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.
"To determine 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) (quoting Norman v. Commonwealth, 2 Va.
App. 518, 519, 346 S.E.2d 44, 45 (1986)). "A defendant's use of
false statements is a significant factor that tends to prove
fraudulent intent in construction fraud." Id. at 330, 423
S.E.2d at 211. "The time for determining fraudulent intent is
the time at which the defendant procured the advance." Id.
at 329, 423 S.E.2d at 210.
In the instant case, the evidence established that
appellant continued a pattern of entering into contracts with
prospective clients in which he demanded advances for supplies
that were never purchased. He made false statements to both
victims that he had several "crews" working for him at a time
when he was experiencing severe cash flow problems. He failed
to begin or complete any work on the contracts, avoided contact
with the victims, and refused to return their deposits when
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requested. His dealings with the Johnsons, Ware and Dylla were
not isolated instances, but rather were consistent with his
recent conduct with ten to twelve other homeowners, as
established by Pritchard. Appellant's conduct and
representations sufficiently prove the requisite fraudulent
intent at the time the contracts were executed.
For the foregoing reasons, we affirm.
Affirmed.
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