Kelly Patrick Johnson v. Commonwealth of Virginia
0751162
Va. Ct. App.May 23, 2017Background
- Johnson contracted to renovate a home and received a $1,400 advance after partial work; he did not complete the work or deliver the promised supplies.
- Homeowner sent a written demand for return of the advance by certified mail but did not request a return receipt. She also attempted contact and received partial repayment.
- Johnson was tried in a bench trial and convicted under Va. Code § 18.2-200.1 (construction fraud / conversion for advances).
- At trial Johnson moved to strike, arguing the Commonwealth failed to prove the statutory notice element (the demand was not sent “return receipt requested”); the trial court denied the motion.
- On appeal the Court of Appeals reviewed statutory interpretation de novo and examined whether the Commonwealth proved the notice element required by § 18.2-200.1.
- The Court reversed, holding the Commonwealth failed to prove the material statutory element that the written demand was sent by certified mail with return receipt requested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved statutory notice under Va. Code § 18.2-200.1 (demand sent by certified mail, return receipt requested) | Commonwealth: certified mailing and other evidence (tracking, partial repayment, actual knowledge) suffice; strict compliance not required or harmless | Johnson: statute literally requires “return receipt requested”; absence of request means notice element not met | Reversed: must prove the demand was sent by certified mail with return receipt requested; Commonwealth failed to prove that material element |
| Whether actual notice or other methods (online tracking, partial repayment) substitute for the return-receipt requirement | Commonwealth: actual notice/online tracking show defendant was put on notice | Johnson: actual notice is insufficient under controlling precedent; statutory form required | Held: Actual notice/online tracking do not satisfy the statutory requirement; Jimenez/Holsapple control |
| Whether failure to strictly comply is harmless error | Commonwealth: any defect was minor and harmless because Johnson had equivalent notice and a fair trial | Johnson: burden is on Commonwealth to prove every element beyond a reasonable doubt | Held: Not harmless; failure to prove the statutory notice element requires reversal (conviction of a non-offense) |
| Whether trial objection/preservation bars appellate review | Commonwealth argued lack of preservation; appellate court treated assignment of error as sufficient to preserve statute-construction claim | Johnson: preserved via assignment of error and trial motion to strike | Held: Court addressed the legal (statutory) question de novo and reversed on the merits |
Key Cases Cited
- Jimenez v. Commonwealth, 241 Va. 244 (actual notice insufficient; statute requires written demand sent by certified mail, return receipt requested)
- Holsapple v. Commonwealth, 266 Va. 593 (strict construction of § 18.2-200.1; proof of certified mail with return receipt requested satisfies notice element without proof of actual receipt)
- Bowman v. Commonwealth, 290 Va. 492 (statutory elements are questions of law reviewed de novo)
- Klink v. Commonwealth, 12 Va. App. 815 (elements of construction-fraud offense; did not emphasize return-receipt language but cited Jimenez)
- McCrary v. Commonwealth, 42 Va. App. 119 (courts may not rewrite statutory notice requirements; legislative language controls)