COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WARREN GRAFTON POPE, JR. MEMORANDUM OPINION * BY v. Record No. 0692-96-1 JUDGE WILLIAM H. HODGES JANUARY 14, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY Fred W. Bateman, Judge Designate Damian T. Horne (Horne, West & McMurtrie, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
The appellant, Warren Grafton Pope, Jr., was convicted of
obtaining money by false pretenses in violation of Code
§ 18.2-178. On appeal, appellant contends that there was
insufficient evidence to prove (1) a false representation
inducing the victim to part with his money, and (2) a fraudulent
intent. We disagree and affirm.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
At appellant's October 10, 1995 bench trial, Rudolph * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Heinatz, Jr., testified that, while employed at Quinn Motors in
December 1993, he was introduced to appellant. Appellant went by
the name "Todd." Appellant told Heinatz that he "had once owned
a trucking company in Pennsylvania," and, as a result, he "had
the opportunity when someone would default on some over-the-road
tractors that he could pick them up, resell them, and make a few
bucks and that on previous occasions he'd asked some friends of
his, always worked out well." Appellant told Heinatz, "If it
comes up, I'll call you," and Heinatz "said, Fine." On December 17, 1993, appellant called Heinatz to say that
"he had an opportunity to buy ten over-the-road tractors . . .
for $210,000 or $21,000 each and he could resell them for $39,800
each." Appellant said that "he needed" a ten percent advance in
order for the bank to issue "a note for the total amount," and
appellant represented that "[h]e had $11,500 he could put in if
[Heinatz] could put in $9,500." Appellant represented that "he
would do everything else and he would split whatever the profit
was with me." Appellant said that "he was going to make the deal
in Richmond, but that he had to fly to Texas on January 15th
[1994] to consummate the deal."
At some point after January 15, 1994, appellant called
Heinatz "and said that everything was being taken care of. There
was a little snag in negotiations, but it was not a problem,
don't worry about it." Later, appellant told Heinatz that "the
IRS was clamping down on bank accounts, so he was going to be
2 unable to give [Heinatz his] half of" the money. Appellant
visited Heinatz's office on March 6, 1994, and said "that the IRS
was now okay, he'd have my money for me in 10 days."
Heinatz never received any money, and he eventually sued
appellant to recover it. In December 1994, appellant responded
under oath to interrogatories propounded by Heinatz's attorney.
Heinatz "asked [appellant] what he had done with my money, and
[appellant] said he had used my money to pay somebody else from a
similar circumstance; that he had never made a trip to Texas." II.
"If any person obtain, by any false pretense or token, from
any person, with intent to defraud, money or other property which
may be the subject of larceny, he shall be deemed guilty of
larceny thereof . . . . " Code § 18.2-178.
"To sustain a conviction of larceny by false pretenses, the
Commonwealth must prove: (a) that the accused intended to
defraud; (b) that a fraud actually occurred; (c) that the accused
used false pretenses to perpetrate the fraud; and (d) that the
false pretenses induced the owner to part with his property."
Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161
(1994) (en banc) (citation omitted). See also 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); Hubbard v. Commonwealth, 201 Va. 61, 65-66, 109 S.E.2d
100, 104 (1959). A criminal false pretense has been defined to
3 be "the false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation." According to the definition, the false pretense must be a representation as to an existing fact or past event. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within the statute, even though they induce the party defrauded to part with his property.
Hubbard, 201 Va. at 66, 109 S.E.2d at 104 (citation omitted). The Commonwealth must prove that the accused knowingly
stated what was false and that he possessed an intent to defraud
when he made the representation. Riegert v. Commonwealth, 218
Va. 511, 518, 237 S.E.2d 803, 808 (1977) (citing Trogdon v.
Commonwealth, 72 Va. (31 Gratt.) 862, 872 (1878)). "[M]erely
showing that the accused knowingly stated what was false is not
sufficient; there must also be proof that his intent was to
defraud." Riegert, 218 Va. at 518, 237 S.E.2d at 808.
Proof of an intent to defraud may be shown by circumstantial
evidence, which is as acceptable to prove guilt as direct
evidence, and, in some cases, it "is practically the only method
of proof." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980), cert. denied, 450 U.S. 1029 (1981). "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) (citing Riegert, 218 Va. at 518-19,
4 237 S.E.2d at 807-08).
Appellant represented to Heinatz that, in the past, his
friends had invested money in similar ventures and all of those
ventures were successful. Later, appellant stated that he had
located ten trucks to purchase, that he had $11,500 to invest,
and that he had arranged for a bank note contingent on Heinatz's
$9,500 contribution.
Appellant's statement under oath that he converted Heinatz's
money to pay someone "from a similar circumstance" indicated that
appellant's prior investments did not "always work[] out well."
It was also relevant evidence from which the fact finder could
reasonably infer that appellant had employed the truck-purchasing
scheme in the past. See Hubbard, 201 Va. at 66, 109 S.E.2d at
105 (finding that defendant's false representation that his
business was sound and that he had arranged for a loan a
sufficiently false statement of past or existing fact). Because
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WARREN GRAFTON POPE, JR. MEMORANDUM OPINION * BY v. Record No. 0692-96-1 JUDGE WILLIAM H. HODGES JANUARY 14, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY Fred W. Bateman, Judge Designate Damian T. Horne (Horne, West & McMurtrie, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
The appellant, Warren Grafton Pope, Jr., was convicted of
obtaining money by false pretenses in violation of Code
§ 18.2-178. On appeal, appellant contends that there was
insufficient evidence to prove (1) a false representation
inducing the victim to part with his money, and (2) a fraudulent
intent. We disagree and affirm.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
At appellant's October 10, 1995 bench trial, Rudolph * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Heinatz, Jr., testified that, while employed at Quinn Motors in
December 1993, he was introduced to appellant. Appellant went by
the name "Todd." Appellant told Heinatz that he "had once owned
a trucking company in Pennsylvania," and, as a result, he "had
the opportunity when someone would default on some over-the-road
tractors that he could pick them up, resell them, and make a few
bucks and that on previous occasions he'd asked some friends of
his, always worked out well." Appellant told Heinatz, "If it
comes up, I'll call you," and Heinatz "said, Fine." On December 17, 1993, appellant called Heinatz to say that
"he had an opportunity to buy ten over-the-road tractors . . .
for $210,000 or $21,000 each and he could resell them for $39,800
each." Appellant said that "he needed" a ten percent advance in
order for the bank to issue "a note for the total amount," and
appellant represented that "[h]e had $11,500 he could put in if
[Heinatz] could put in $9,500." Appellant represented that "he
would do everything else and he would split whatever the profit
was with me." Appellant said that "he was going to make the deal
in Richmond, but that he had to fly to Texas on January 15th
[1994] to consummate the deal."
At some point after January 15, 1994, appellant called
Heinatz "and said that everything was being taken care of. There
was a little snag in negotiations, but it was not a problem,
don't worry about it." Later, appellant told Heinatz that "the
IRS was clamping down on bank accounts, so he was going to be
2 unable to give [Heinatz his] half of" the money. Appellant
visited Heinatz's office on March 6, 1994, and said "that the IRS
was now okay, he'd have my money for me in 10 days."
Heinatz never received any money, and he eventually sued
appellant to recover it. In December 1994, appellant responded
under oath to interrogatories propounded by Heinatz's attorney.
Heinatz "asked [appellant] what he had done with my money, and
[appellant] said he had used my money to pay somebody else from a
similar circumstance; that he had never made a trip to Texas." II.
"If any person obtain, by any false pretense or token, from
any person, with intent to defraud, money or other property which
may be the subject of larceny, he shall be deemed guilty of
larceny thereof . . . . " Code § 18.2-178.
"To sustain a conviction of larceny by false pretenses, the
Commonwealth must prove: (a) that the accused intended to
defraud; (b) that a fraud actually occurred; (c) that the accused
used false pretenses to perpetrate the fraud; and (d) that the
false pretenses induced the owner to part with his property."
Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161
(1994) (en banc) (citation omitted). See also 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); Hubbard v. Commonwealth, 201 Va. 61, 65-66, 109 S.E.2d
100, 104 (1959). A criminal false pretense has been defined to
3 be "the false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation." According to the definition, the false pretense must be a representation as to an existing fact or past event. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within the statute, even though they induce the party defrauded to part with his property.
Hubbard, 201 Va. at 66, 109 S.E.2d at 104 (citation omitted). The Commonwealth must prove that the accused knowingly
stated what was false and that he possessed an intent to defraud
when he made the representation. Riegert v. Commonwealth, 218
Va. 511, 518, 237 S.E.2d 803, 808 (1977) (citing Trogdon v.
Commonwealth, 72 Va. (31 Gratt.) 862, 872 (1878)). "[M]erely
showing that the accused knowingly stated what was false is not
sufficient; there must also be proof that his intent was to
defraud." Riegert, 218 Va. at 518, 237 S.E.2d at 808.
Proof of an intent to defraud may be shown by circumstantial
evidence, which is as acceptable to prove guilt as direct
evidence, and, in some cases, it "is practically the only method
of proof." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980), cert. denied, 450 U.S. 1029 (1981). "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) (citing Riegert, 218 Va. at 518-19,
4 237 S.E.2d at 807-08).
Appellant represented to Heinatz that, in the past, his
friends had invested money in similar ventures and all of those
ventures were successful. Later, appellant stated that he had
located ten trucks to purchase, that he had $11,500 to invest,
and that he had arranged for a bank note contingent on Heinatz's
$9,500 contribution.
Appellant's statement under oath that he converted Heinatz's
money to pay someone "from a similar circumstance" indicated that
appellant's prior investments did not "always work[] out well."
It was also relevant evidence from which the fact finder could
reasonably infer that appellant had employed the truck-purchasing
scheme in the past. See Hubbard, 201 Va. at 66, 109 S.E.2d at
105 (finding that defendant's false representation that his
business was sound and that he had arranged for a loan a
sufficiently false statement of past or existing fact). Because
appellant misrepresented that prior ventures were always
successful, the Commonwealth sufficiently proved that appellant
made a false representation of a past or existing fact.
As to whether the Commonwealth proved appellant's fraudulent
intent, we look to his conduct and representations. Although
appellant told Heinatz that he had to go to Texas to consummate
the deal, he admitted during interrogatories that he never
travelled to Texas. Also, appellant falsely assured Heinatz not
to worry, that he had taken care of everything, and that Heinatz
5 would receive his money by March 16, 1994. Heinatz did not,
however, receive any money from appellant because appellant
converted it to pay another dissatisfied investor. These
misleading and false statements by appellant clearly showed his
fraudulent intent. Moreover, the fact that appellant had
similarly defrauded others also established his fraudulent
intent. See id. at 67, 109 S.E.2d at 105 (finding that
perpetration of similar frauds on others was probative of
fraudulent intent). Therefore, we find that the Commonwealth's evidence was
sufficient to prove beyond a reasonable doubt that appellant made
false representations and that he did so with the requisite
fraudulent intent. Accordingly, we affirm appellant's
conviction. Affirmed.