COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

STEPHEN CONSTANTINE, S/K/A 

 STEVEN CONSTANTINE 

v. Record No. 0184-95-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

 COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Edwin Gadberry, III, for appellant. 

 Richard Rizk, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Monica S. McElyea, Assistant Attorney 

General, on brief), for appellee. 

 The appellant, Stephen Constantine, was convicted in a bench 

trial of grand larceny by false pretenses in violation of Code 

§ 18.2-178. He contends that the evidence is insufficient to 

support his conviction. We agree and reverse. 

 On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. The judgment of a trial 

judge sitting without a jury is entitled to the same weight as a 

jury verdict and will not be set aside unless it appears from the 

evidence that the judgment is plainly wrong or without evidence 

to support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 

S.E.2d 491, 497 (1990) (en banc). However, we cannot disregard 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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credible, unimpeached evidence of the Commonwealth which 

exculpates the defendant and creates a reasonable doubt. Harward 

v. Commonwealth, 5 Va. App. 468, 479, 364 S.E.2d 511, 516 (1988). 

 The only witness for the Commonwealth was Calvin T. Eaves. 

Eaves testified that the defendant was a mobile service mechanic, 

who had done work for him. He considered him a good mechanic. 

Eaves's son owned a car that needed a major overhaul. Eaves 

contacted the defendant on May 9, 1994, about this work, and 

wrote him a check in the amount of five hundred dollars, the 

amount the defendant said he needed. 

 About two days later, the defendant called Eaves and advised 

him that the engine in the car was in worse shape than he 

thought. The defendant advised Eaves that he needed another 

engine to work with and needed another two hundred and twentyfive dollars. Eaves gave him an additional check for this 

amount. 

 According to the testimony of Eaves, the defendant towed the 

car to a place where he was working. Then he towed it to another 

location. No work was done on the car and Eaves finally lost 

contact with him, although he called frequently and left his 

number. 

 On cross-examination, Eaves testified that he contacted the 

defendant a couple of times, but defendant would not return 

calls. Finally, defendant's phone was disconnected and Eaves 

lost contact. Eaves stated the defendant gave an excuse that he 
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had moved to a new location, had gotten a lot of work to do, and 

had not gotten to Eaves's car yet. Eaves testified that his only 

problem with the defendant was that the work was not done and 

that neither he nor the car could be found. These events 

occurred over a period of six weeks to two months. Eaves finally 

contacted the police and criminal charges were commenced. On or 

about the time the matter came up in court, the defendant 

refunded all of the money and returned the car. 

 The defendant testified that he received the five hundred 

dollar check and towed the car to an inside garage. He found 

that the engine was so far gone that the car needed another 

engine. He obtained another engine from Eaves, but this engine's 

camshaft was bad. He was given two hundred twenty-five dollars 

to secure another camshaft. 

 The defendant admitted that he did not repair the car and 

did not keep in contact with Eaves. He said his mobile service 

was not working and a friend decided to put him in a four-bay 

garage. The friend got into trouble and shut down the garage. 

During this time he received more business than he could handle 

and he admitted that he was unable to keep proper contact with 

all of his customers. He testified that he fully expected to 

repair the car and made no misrepresentations to Eaves, except he 

was unable to do the work as quickly as he had promised. He 

stated that when he received the checks, he deposited them into 

his bank account and did not intend to take advantage of or 
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defraud anyone. 

 In order to convict a person of larceny by false pretenses, 

the Commonwealth must prove four elements of the offense: (1) an 

intent to defraud; (2) an actual fraud; (3) use of false 

pretenses for the purpose of perpetrating the fraud; and (4) the 

false pretenses induced the owner to part with his property. 

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); Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 

S.E.2d 160, 161 (1994) (en banc). 

 The fraud is accomplished by means of the 

false pretenses where the false pretenses to 

some degree induced the owner to part with 

his property. The false pretense must be a 

representation as to any existing fact or 

past event. Merely showing that the accused 

knowingly stated what was false is not 

sufficient; there also must be proof that his 

intent was to defraud and that the fraudulent 

intent existed at the time the false 

pretenses were made. 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). 

 Under these principles, for one to be guilty of the crime of 

larceny by false pretenses, he must make a false representation 

of an existing or past fact with knowledge of its falsity and, on 

that basis, obtain from another person money or other property 

which may be the subject of larceny, with the intent to defraud. 
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 We find that the Commonwealth's evidence does not meet these 

criteria. 

 The evidence in this case does not establish any false 

representation of an existing fact made by the defendant with 

knowledge of its falsity. In effect, no fraud has been shown by 

the Commonwealth. The evidence does not show any 

misrepresentation that induced Eaves to part with the two checks. 

 He sought out the defendant to do the work on the car because 

the defendant had previously done work for him and he considered 

the defendant to be a good mechanic. The second check was given 

because the replacement engine required a new camshaft. These 

facts are undisputed. The defendant admits to subsequent bad 

business practices, but this does not constitute larceny by false 

pretenses. Furthermore, no evidence showing an intent to defraud 

is present in this record. 

 "Whether a criminal conviction is supported by evidence 

sufficient to prove guilt beyond a reasonable doubt is not a 

question of fact but one of law. A conviction based upon a mere 

suspicion of guilt or probability of guilt, however strong, 

cannot stand." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 

351 S.E.2d 598, 601-02 (1986). 

 The Commonwealth's evidence does not establish fraud, intent 

to defraud or that the victim was induced to part with the checks 

because of false representations. The Commonwealth's evidence is 

consistent with the defendant's innocence. Therefore, the 
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evidence shown in this record as a matter of law is insufficient 

to establish the defendant's guilt beyond a reasonable doubt. 

 For these reasons, the conviction is reversed, the 

indictment dismissed and final judgement is entered in favor of 

the defendant. 

 Reversed and dismissed.