Anthony Seaborne v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 11, 1999
• Docket: 1546981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia

ANTHONY SEABORNE MEMORANDUM OPINION * BY v. Record No. 1546-98-1 JUDGE ROSEMARIE ANNUNZIATA MAY 11, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Westbrook J. Parker, Judge

(Shavaughn N. Banks, Assistant Public Defender, on brief), for appellant. Appellant submitting on brief.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Anthony Seaborne (“appellant”) appeals his bench trial

conviction of grand larceny by false pretenses, contending the

evidence was insufficient to establish two elements of the

offense: (1) that he acted with intent to defraud, and (2) that

the victim was induced to part with its property by false

pretenses. We disagree and affirm appellant’s conviction.

In reviewing the sufficiency of evidence on appeal, “the

appellate court must examine the evidence and all inferences

reasonably deducible therefrom in the light most favorable to the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth, the prevailing party in the trial court.”

Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265

(1998). “We may not disturb the trial court’s judgment unless it

is ‘plainly wrong or without evidence to support it.’” Barlow v.

Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998)

(quoting Beavers v. Commonwealth, 245 Va. 268, 282, 427 S.E.2d

411, 421 (1993)).

Furthermore, “[t]he credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as it

is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138,

455 S.E.2d 730, 732 (1995). “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.” Marable v. Commonwealth,

27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

To sustain a conviction of larceny by false pretenses, the

Commonwealth must prove: (1) that the accused intended to

defraud; (2) that a fraud actually occurred; (3) that the accused

used false pretenses to perpetrate the fraud; and (4) that the

false pretenses induced the owner to part with his property. See

Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161

(1994) (en banc); Riegert v. Commonwealth, 218 Va. 511, 518, 237

S.E.2d 803, 807 (1977).

- 2 - Viewed in the light most favorable to the Commonwealth, the

evidence establishes that, in April 1997, Barbara Thomas Smith, a

claims services specialist for the Hartford Insurance Company

(“the Company”), issued and mailed a temporary total benefit check

for $500 to appellant to pay a worker’s compensation claim.

Within an hour of sending the check, Smith learned appellant was

ineligible for the payment. Smith unsuccessfully attempted to

contact appellant on April 15 to advise him that his claim had

been denied and that he should not cash the check. Smith left

telephone messages for appellant on April 15 and 16, asking him to

call her, and put a stop payment order on the check.

On the afternoon of April 16, appellant called Smith and

advised her, upon inquiry, that he had not received the benefit

check. Smith told appellant not to cash the check and asked him

to return it upon receipt, advising him further that his

compensation claim had been denied and that a stop payment order

had been placed on the check. Smith cautioned appellant the check

would “bounce” if he took it to the bank, stating she did not want

him to “get in trouble.” Appellant became angry when he learned

his claim had been denied, telling Smith that he would not take

the check to a bank and that he was going to hire a lawyer.

On the afternoon of April 17, 1997, appellant took the

benefit check to Bunny’s Pawn Shop, where it was cashed. Lisa

Smith, an employee of the pawn shop, gave appellant $490 in cash,

and Matthew Russo, another employee, deposited the check on the

- 3 - same day. The check was later returned with a stop payment

notation on it.

After Russo learned from the Company that appellant had been

notified of the stop payment order, he attempted to telephone

appellant but spoke to appellant’s brother instead. Appellant did

not return Russo’s call. Russo also sent appellant a certified

letter reciting the details of the matter and disclosing his

knowledge that the Company had notified appellant to return the

check because of the stop payment order. The letter directed

appellant to contact the pawn shop immediately. Although

appellant received the certified letter, he failed to make the

requested contact. 1

When viewed in the light most favorable to the Commonwealth,

the evidence establishes that appellant presented a check to

Bunny’s Pawn Shop for payment after Smith advised him not to do so

because of the stop payment order. Appellant’s conduct is

consistent with an intent to defraud. See Grites v. Commonwealth,

9 Va. App. 51, 58, 384 S.E.2d 328, 332 (1989) (finding that the

defendant’s attempt to negotiate a check “in disregard of specific

instructions not to do so,” and in spite of several messages left

at his residence that payment was going to be stopped, “is

consistent with an intent to defraud”). The testimony of

1 At trial, appellant acknowledged that his signature appeared on the receipt to the letter but testified that he did not recall receiving the letter.

- 4 - appellant and his fiancée that appellant had already cashed the

check before speaking with Barbara Smith is not material to our

resolution of the issue on appeal. “An appellate court must

discard all evidence of the accused that conflicts with that of

the Commonwealth and regard as true all credible evidence

favorable to the Commonwealth and all fair inferences reasonably

deducible therefrom.” Lea v. Commonwealth, 16 Va. App. 300, 303,

429 S.E.2d 477, 479 (1993). In addition to the evidence that

appellant cashed the check with knowledge of the Company’s stop

payment order, appellant’s failure to contact Bunny’s Pawn Shop

about the check after receiving a certified letter to do so

further establishes his intent to defraud. See Riegert, 218 Va.

at 519, 237 S.E.2d at 808 (stating that, in order to determine

whether the intent to defraud existed, “the conduct and

representations of the accused must be examined, since intent is

‘a secret operation of the mind’” (quoting Trogdon v.

Commonwealth, 72 Va. (31 Gratt.) 862, 872 (1878))). Finally, we

note that the credibility determination is solely within the

province of the trier of fact who was free to disbelieve

appellant’s testimony and consider his lack of candor on the stand

as evidence of his guilt. See Marable, 27 Va. App. at 509-10, 500

S.E.2d at 235. Based on the foregoing, we cannot say as a matter

of law that the evidence was insufficient to establish appellant’s

intent to defraud beyond a reasonable doubt. See Grites, 9 Va.

App. at 59, 384 S.E.2d at 333 (stating that the issue of whether a

- 5 - criminal conviction is supported by evidence proving guilt beyond

a reasonable doubt is a question of law).

Appellant’s further claim that the evidence does not

establish beyond a reasonable doubt that Bunny’s Pawn Shop was

induced to part with its property in reliance upon his false

representation was not properly preserved at trial. The defendant

made no motions to strike and limited his argument on summation to

the intent to defraud element of the instant offense. The record

further contains no motion to set aside the verdict on the ground

appellant raises. Thus, appellant’s claim is barred on appeal.

See Rule 5A:18; Campbell v. Commonwealth, 12 Va. App. 476, 480,

405 S.E.2d 1, 2 (1991) (en banc).

Finding no error, we affirm the conviction.

Affirmed.

- 6 -