COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
JAMES D. MORTON
MEMORANDUM OPINION * BY
v. Record No. 0864-98-4 JUDGE MARVIN F. COLE
JULY 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr., Appellate Defender; Public
Defender Commission, on briefs), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James D. Morton, appellant, appeals his conviction for
defrauding a restaurant in violation of Code § 18.2-188.
Appellant contends the evidence was insufficient to prove his
intent to cheat or defraud within the meaning of Code § 18.2-188.
We disagree and affirm.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
(citation omitted). "The 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).
So viewed, the evidence showed that appellant planned a
surprise party for his wife to be held at "The Copper Bit" on
Monday, August 5, 1997. The general manager of "The Copper
Bit," Dwayne White, agreed to let appellant use "The Copper Bit"
for the party and to sell appellant a keg of beer for his
guests. White also agreed to book a band. Appellant agreed to
reimburse White for the band's cost.
Appellant gave White a check dated July 31, 1997 for $450
to reimburse White for the band. Appellant asked that White
wait to deposit the check until appellant's paycheck arrived.
On August 2, appellant stopped payment on the check. On August
4, the day before the party, appellant told White that he wanted
to cancel the party. White said it was too late and that the
band was already booked. Appellant said, "[O]kay, we will see
you Monday night then." Appellant agreed to pay for the keg of
beer and pay for the band, but cancelled his order for party
food. Appellant never told White that he had stopped payment on
the check for the band.
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On Monday, August 5, 1997, appellant and his wife, and
approximately 50-70 invited guests, attended the party. White
did not "charge a cover" from appellant's guests because
appellant "paid for the band. It was his party." Sometime
after the party, a bank representative called and informed White
of the stop payment order on appellant's check. White asked
appellant to "make [the check] good." Appellant agreed to pay
White, but never made any payments. During the last contact
White had with appellant, appellant said, "F.U. Get an
attorney. You are not getting any money from me."
Pursuant to Code § 18.2-188, it is unlawful for a person,
without paying, to procure entertainment from a restaurant with
the intent to cheat or defraud. A person who obtains
entertainment and the benefits of that entertainment, without
intending to pay for it, has violated Code § 18.2-188. See Roger
D. Groot, Criminal Offenses and Defenses in Virginia 195 (3d ed.
1994). In order to determine whether the person had the requisite
intent, the person's conduct and representations must be
scrutinized. See Cunningham v. Commonwealth, 219 Va. 399, 402,
247 S.E.2d 683, 684 (1978).
In Cunningham, the evidence showed that Nancy Cunningham went
to a dealership to purchase a car and gave the dealer a check for
$1,100. Thereafter, Cunningham stopped payment on the check.
Later that day, Cunningham returned to the dealership, agreed with
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the dealer to rescind the contract, and the dealer agreed to
return Cunningham's check the next day. Cunningham never revealed
to the dealer that she had stopped payment on the check. The next
day, Cunningham returned to the dealership, said she wanted the
car rather than the return of her check, and said she had
purchased license tags for the new car. Because the dealer had
Cunningham's check, he delivered possession of the car to her.
Cunningham concealed the fact that she had stopped payment on the
check. The Court found that Cunningham obtained possession of the
car with fraudulent intent. The Court stated:
The record is replete with indicia of the
defendant's fraudulent intent, and it
supports the findings of the trial court.
The conduct and representations of the
defendant show that the crime of larceny by
false pretenses was consummated . . . .
When defendant obtained possession of the
car by concealing the fact that she had
stopped payment on the check, the offense of
larceny by false pretenses was complete.
Id. at 403, 247 S.E.2d at 685.
In the present case, appellant tried to cancel the party
but was told it was too late to cancel the band. Appellant
agreed to pay for the beer and band, but cancelled his order for
the party food. Appellant never told White that he had stopped
payment on the check. Even though he had stopped payment on the
check, appellant, his wife, and their 50-70 invited guests went
to "The Copper Bit" on the night of the party and obtained the
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benefits of the band's entertainment. The fact that appellant
had already stopped payment on the check was proof of his intent
not to pay for the entertainment. Appellant's conduct and
representations showed that the crime of defrauding a restaurant
was complete when he accepted the benefits of the band's
entertainment while concealing the fact that he had stopped
payment on the check written to cover the cost of the band.
We conclude that the evidence was sufficient to support the
finding of intent to defraud, and we affirm the conviction.
Affirmed.
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