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).
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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
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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.
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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
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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.
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