                     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




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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


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             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.




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