                                COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Kelsey and Senior Judge Overton
Argued at Salem, Virginia


DAVID GEORGE WHEELER
                                                                 MEMORANDUM OPINION* BY
v.     Record No. 0860-03-3                                       JUDGE D. ARTHUR KELSEY
                                                                     SEPTEMBER 28, 2004
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                           James Howe Brown, Jr., Judge Designate

                 Randall J. Trost (Randall J. Trost, P.C., on briefs), for appellant.

                 John H. McLees, Senior Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General; Margaret W. Reed, Assistant Attorney
                 General, on brief), for appellee.


       Claiming the evidence at trial was insufficient to prove him guilty of petit larceny, David

George Wheeler appeals. Finding the evidence sufficient, we affirm.

                                                    I.

       We review the evidence in the “light most favorable” to the Commonwealth, the prevailing

party in the trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert.

denied, 124 S. Ct. 444 (2003). “On appeal this Court must ‘discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences to be drawn therefrom.’” Parks v. Commonwealth, 221 Va.

492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82

S.E.2d 603, 606 (1954)) (emphasis added by Parks).



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Around 12:30 a.m. on the morning of March 3, 2002, John Douglas, the owner of the An

Claddagh Irish Pub in Altavista, noticed David Wheeler sleeping at one of the tables. Wheeler

had been at the pub drinking and listening to music for about six hours. Douglas approached

Wheeler, awoke him, presented him with a $30 bill for payment, and asked him to pay the bill

and to then leave. Wheeler ignored him. Douglas continued to ask Wheeler about fifteen times

to pay his bill.

        After finding only eight dollars in his pockets, Wheeler eventually provided his credit

card to Douglas’s wife to pay the bar tab. The computer declined the card. Douglas’s wife

returned the card and again asked Wheeler to pay. Wheeler tried to borrow money from another

customer whom he did not know. Wheeler then turned toward the back of the pub, began

heading toward the bathroom, and was told by Douglas’s wife “if you don’t pay your tab, I’ll call

the police.” “Fuck you,” Wheeler responded. “Call the fucking police.”

        Douglas and his wife were both “adamant” about getting the bill paid because Wheeler

had done this before (drinking more than he could pay for and then producing an invalid credit

card), leaving them with an unpaid tab for five months. Even before that, Wheeler had been

barred from the pub twice. Given Wheeler’s history of ordering more alcohol than he could pay

for, Douglas called the police.

        Two officers promptly arrived and waited for Wheeler to exit the bathroom. When he

came out, the officers questioned him about his refusal to pay his bar tab. Wheeler responded

silently with an “aggressive” stare directly into the officer’s face. Then, when asked for his

identification, Wheeler struck one of the officers in the mouth. The officers wrestled Wheeler to

the ground, handcuffed him, and placed him under arrest. Wheeler continued to curse and

physically resist the officers.




                                               -2-
        Charged with assault and battery of a law enforcement officer, obstruction of justice, and

petit larceny, Wheeler pled not guilty and waived his right to trial by jury. At his bench trial,

Wheeler admitted knowing that he “only had a few bucks, maybe ten dollars” on him while at

the pub. But relying on prior “arrangements,” Wheeler claimed, he had an understanding with

Douglas to pay the deficiency at some later date. When asked whether this claim was true,

Douglas replied: “No, absolutely not.” Wheeler also denied that he had previously walked out

on a bar tab after offering up an invalid credit card. “He may be thinking about another one of

his patrons,” Wheeler explained.

        Determining that Wheeler’s “story isn’t true,” the trial judge found him guilty of assault

and battery of a law enforcement officer in violation of Code § 18.2-57, obstruction of justice in

violation of Code § 18.2-460, and petit larceny in violation of Code § 18.2-96. We granted an

appeal only on Wheeler’s challenge to his petit larceny conviction.

                                                    II.

        When addressing a challenge to the sufficiency of the evidence, we “presume the judgment

of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or

without evidence” to support it. Code § 8.01-680. Under this standard, we ask whether “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see also Seaton v.

Commonwealth, 42 Va. App. 739, 747-48, 595 S.E.2d 9, 13 (2004); Crowder v. Commonwealth, 41

Va. App. 658, 663, 588 S.E.2d 384, 387 (2003).

        Code § 18.2-96 defines petit larceny as “simple larceny not from the person of another of

goods and chattels of the value of less than $200.” Simple larceny involves a “wrongful or

fraudulent taking of personal goods of some intrinsic value, belonging to another, without his

                                                   -3-
assent, and with the intention to deprive the owner thereof permanently.” Hudgins v.

Commonwealth, 43 Va. App. 219, 231, 597 S.E.2d 221, 226 (2004) (en banc) (citation omitted).

Often impossible to establish with direct evidence, intent may instead be shown by

circumstantial evidence. See Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d

242, 249 (2004); McCary v. Commonwealth, 42 Va. App. 119, 126-27, 590 S.E.2d 110, 114

(2003).

          Not paying a bar tab is not, by itself, stealing. But ordering drinks knowing that one

cannot or will not pay is. See generally 3 Wayne R. LaFave, Substantive Criminal Law

§ 19.5(c), at 93 (2d ed. 2003) (observing that the “intent to pay for the property taken . . . is never

a good defense unless there is a substantial ability to do so”). The circumstances of this case

support the factfinder’s conclusion that Wheeler ordered $30 worth of drinks knowing that he

had only “a few bucks, maybe ten dollars” and an invalid credit card to pay for them. He had

done exactly this before and had been barred twice from the bar.1 Wheeler’s claim of having an

understanding with the proprietor (allowing Wheeler to drink as much as he wished so long as he

paid at some later date) was directly refuted by the testimony of the proprietor. The trial judge,

therefore, had ample grounds to dismiss Wheeler’s claim either as a convenient memory clouded

by intoxication or as an outright “effort at ‘lying to conceal his guilt.’” Dugger v.

Commonwealth, 40 Va. App. 586, 594 n.2, 580 S.E.2d 477, 481 n.2 (2003) (citation omitted).

The inculpatory inference is strengthened by Wheeler’s verbal abuse of the proprietor’s wife and

his later assault on the police officer ⎯ hardly the response of an innocent patron attempting to

cope with a simple misunderstanding over a bar tab.




          1
         Wheeler did not object at trial to Douglas’s testimony about his prior dealings with
Wheeler. At oral argument on appeal, Wheeler likewise agreed that “the patron’s past
relationship with the proprietor is relevant to inform the factfinder on intent.”
                                                  -4-
                                              III.

       Because sufficient evidence supports the trial court’s decision that Wheeler committed

petit larceny, we affirm his conviction.



                                                                                   Affirmed.




                                             -5-
