                  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




                                 -4-
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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