Stephen Constantine, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
STEPHEN CONSTANTINE, S/K/A
STEVEN CONSTANTINE
v. Record No. 0184-95-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Edwin Gadberry, III, for appellant.
Richard Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Monica S. McElyea, Assistant Attorney
General, on brief), for appellee.
The appellant, Stephen Constantine, was convicted in a bench
trial of grand larceny by false pretenses in violation of Code
§ 18.2-178. He contends that the evidence is insufficient to
support his conviction. We agree and reverse.
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The judgment of a trial
judge sitting without a jury is entitled to the same weight as a
jury verdict and will not be set aside unless it appears from the
evidence that the judgment is plainly wrong or without evidence
to support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc). However, we cannot disregard
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
credible, unimpeached evidence of the Commonwealth which
exculpates the defendant and creates a reasonable doubt. Harward
v. Commonwealth, 5 Va. App. 468, 479, 364 S.E.2d 511, 516 (1988).
The only witness for the Commonwealth was Calvin T. Eaves.
Eaves testified that the defendant was a mobile service mechanic,
who had done work for him. He considered him a good mechanic.
Eaves's son owned a car that needed a major overhaul. Eaves
contacted the defendant on May 9, 1994, about this work, and
wrote him a check in the amount of five hundred dollars, the
amount the defendant said he needed.
About two days later, the defendant called Eaves and advised
him that the engine in the car was in worse shape than he
thought. The defendant advised Eaves that he needed another
engine to work with and needed another two hundred and twenty-
five dollars. Eaves gave him an additional check for this
amount.
According to the testimony of Eaves, the defendant towed the
car to a place where he was working. Then he towed it to another
location. No work was done on the car and Eaves finally lost
contact with him, although he called frequently and left his
number.
On cross-examination, Eaves testified that he contacted the
defendant a couple of times, but defendant would not return
calls. Finally, defendant's phone was disconnected and Eaves
lost contact. Eaves stated the defendant gave an excuse that he
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had moved to a new location, had gotten a lot of work to do, and
had not gotten to Eaves's car yet. Eaves testified that his only
problem with the defendant was that the work was not done and
that neither he nor the car could be found. These events
occurred over a period of six weeks to two months. Eaves finally
contacted the police and criminal charges were commenced. On or
about the time the matter came up in court, the defendant
refunded all of the money and returned the car.
The defendant testified that he received the five hundred
dollar check and towed the car to an inside garage. He found
that the engine was so far gone that the car needed another
engine. He obtained another engine from Eaves, but this engine's
camshaft was bad. He was given two hundred twenty-five dollars
to secure another camshaft.
The defendant admitted that he did not repair the car and
did not keep in contact with Eaves. He said his mobile service
was not working and a friend decided to put him in a four-bay
garage. The friend got into trouble and shut down the garage.
During this time he received more business than he could handle
and he admitted that he was unable to keep proper contact with
all of his customers. He testified that he fully expected to
repair the car and made no misrepresentations to Eaves, except he
was unable to do the work as quickly as he had promised. He
stated that when he received the checks, he deposited them into
his bank account and did not intend to take advantage of or
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defraud anyone.
In order to convict a person of larceny by false pretenses,
the Commonwealth must prove four elements of the offense: (1) an
intent to defraud; (2) an actual fraud; (3) use of false
pretenses for the purpose of perpetrating the fraud; and (4) the
false pretenses induced the owner to part with his property.
Quidley v. Commonwealth, 221 Va. 963, 965, 275 S.E.2d 622, 624
(1981); Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d
714, 717 (1976); Wynne v. Commonwealth, 18 Va. App. 459, 460, 445
S.E.2d 160, 161 (1994) (en banc).
The fraud is accomplished by means of the
false pretenses where the false pretenses to
some degree induced the owner to part with
his property. The false pretense must be a
representation as to any existing fact or
past event. Merely showing that the accused
knowingly stated what was false is not
sufficient; there also must be proof that his
intent was to defraud and that the fraudulent
intent existed at the time the false
pretenses were made. The conduct or
representation of the accused may be
considered to determine whether the intent to
defraud existed at the time the act was
committed.
Grites v. Commonwealth, 9 Va. App. 51, 56, 384 S.E.2d 328, 331
(1989).
Under these principles, for one to be guilty of the crime of
larceny by false pretenses, he must make a false representation
of an existing or past fact with knowledge of its falsity and, on
that basis, obtain from another person money or other property
which may be the subject of larceny, with the intent to defraud.
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We find that the Commonwealth's evidence does not meet these
criteria.
The evidence in this case does not establish any false
representation of an existing fact made by the defendant with
knowledge of its falsity. In effect, no fraud has been shown by
the Commonwealth. The evidence does not show any
misrepresentation that induced Eaves to part with the two checks.
He sought out the defendant to do the work on the car because
the defendant had previously done work for him and he considered
the defendant to be a good mechanic. The second check was given
because the replacement engine required a new camshaft. These
facts are undisputed. The defendant admits to subsequent bad
business practices, but this does not constitute larceny by false
pretenses. Furthermore, no evidence showing an intent to defraud
is present in this record.
"Whether a criminal conviction is supported by evidence
sufficient to prove guilt beyond a reasonable doubt is not a
question of fact but one of law. A conviction based upon a mere
suspicion of guilt or probability of guilt, however strong,
cannot stand." Bridgeman v. Commonwealth, 3 Va. App. 523, 528,
351 S.E.2d 598, 601-02 (1986).
The Commonwealth's evidence does not establish fraud, intent
to defraud or that the victim was induced to part with the checks
because of false representations. The Commonwealth's evidence is
consistent with the defendant's innocence. Therefore, the
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evidence shown in this record as a matter of law is insufficient
to establish the defendant's guilt beyond a reasonable doubt.
For these reasons, the conviction is reversed, the
indictment dismissed and final judgement is entered in favor of
the defendant.
Reversed and dismissed.
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