COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia

JOHN W. HEYWOOD, A/K/A JOHN MICHAEL HEYWOOD MEMORANDUM OPINION * BY v. Record No. 0722-05-2 J UDGE JAMES W. HALEY, JR. MAY 23, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF POWHATAN COUNTY Thomas V. Warren, Judge Aubrey M. Davis, Jr. (Gordon, Dodson, Gordon & Rowlett, on brief), for appellant. Eugene Murphy, Senior Assist ant Attorney Gene ral (Robert F. McDonnell, Attorney General; Susa n L. Parrish, Assistant Attorney General, on brief), for appellee.

I. Code § 18.2-200.1 provides in pertinent part as follows: If any person obtain from another an advance of money . . . with fraudulent intent, upon a promise to perform construction . . . and fail or refuse to perform such promise, and also fail to su bstantially make good such advance, he shall be deem ed guilty of the larceny of such money . . . if he fails to return su ch advance within fifteen days of a request to do so sent by certified ma il, return receipt requested, to his last know address . . . . Convicted in a bench trial of contractor fraud under this statut e, John W. Heywood challenges the sufficiency of the ev idence of his fraudulent intent. Finding that evidence sufficient, we affirm.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - II. FACTS In April 2004, Carl Minetree met the appellant while the latter was pe rforming painting and minor repairs on Minetree’s neighbor’s home. Mine tree asked appellant if he could perform similar work soon on his home, as he was preparing it for sale. On April 28, 2004, appe llant prepared a written agreement, which in cluded provisions for re placing gutters, scraping , painting, etc. The price was $4,000, and on that date appellant was given $1,500. Th e work was to begin on Friday, April 30, 2004 and conti nue thereafter. On that date, appellant removed some gutters. Minetree called appellant the following Monday, inquiring as to his whereabouts. Appellant replied he would be there on “Tuesday or Wednes day.” Minetree testified that he called appellant with the same inquiry “the whole month of Ma y.” Appellant never returned to the job. On June 4, 2004, in accordance with Code § 18.2-200.1, Minetree mailed a certified letter to appellant, asking for the return of his deposit. 1 No response was receiv ed, and on Ju ly 6, 2004, a felony warrant was obtained. On September 3, 2004, the date of the preliminary hearing, appellant returned $900. On December 15, 2004, the day after appellant wa s indicted, he returned $600. Testifying in his own defense, appellant offered a number of reasons why he never returned to the job. These includ ed: “weather delays”; the neighbor ha d died and his wife did not want him back on the job until “afte r the funeral”; and, despite Mr. Minetree’s testim ony that he continuously requested appellant do the work, a ppellant claimed that Mr. Minetree “didn’t want me back on the job . . . I was not allowed to ” come back to the job. In response to a trial court inquiry, appellant testified he had “ordered paint for the job . . . and picked the paint up.” He testified he had receipts for this paint but did not produce them.

1 In the letter, Mr. Minetree offered to pa y appellant $100 for the gutter removal, and sought the return of $1,400.- 3 - In rebuttal, Minetree test ified that he had “never told [appellant] a [pai nt] color . . . we never discussed the color of the house . . . [because] after that Friday he never came back.” The trial court found appellant guilty and sentenced him to twelve months in ja il with nine months suspended.
III. ANALYSIS In Klink v. Commonwealth , 12 Va. App. 815, 407 S.E.2d 5 (1991), this Court set forth the elements of contractor fraud un der Code § 18.2-200.1. The crim e consists of five elements: “(1) obtaining an advance of mone y . . . (2) a fraudulent intent at the time the adva nce is obtained, (3) a promise to perform constructio n or improvement . . ., (4) a failu re to perform . . ., and (5) a failure to return the advance ‘within fifteen days of a request to do so by cer tified mail . . . .’” Id. at 818, 407 S.E.2d at 7 (citation omitted). Heywood first challenges the sufficiency of the evidence of fraudulent in tent at the time he received the advance. Initially, we note the credibility of witnesses and the weight of the evidence are matters within the province of the trial court, Sandoval v. Commonwealth , 20 Va. App. 13 3, 138, 455 S.E.2d 730, 732 (19 95), and the judgment of that court within that prov ince is entitled to the same weight as a jury verdict and will not be distur bed on appeal unless plainly wrong or without evidence to support it. Wilson v. Commonwealth , 46 Va. App. 408, 432, 617 S.E.2d 431, 443 (2005) ( en banc ). See also Code § 8.01-680; Wa ldrop v. Commonwealth , 23 Va. App. 614, 626, 478 S.E.2d 723, 728 (1996), rev’d on other grounds , 255 Va. 210, 495 S.E.2d 822 (1998). “The time for determining frau dulent intent is th e time at which the defendant procured the advance.” Rade r v. Commonwealth , 15 Va. App. 324, 32 9, 423 S.E.2d 207, 210 (1992). In Norman v. Commonwealth , 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986) , likewise addressing- 4 - Code § 18.2-200.1, we no ted, “Whether fraud actua lly existed will depend upon the circumstances of each case.” In Rader , the Court noted, “A defendant’s use of false statements is a significant factor that tends to prove fraudule nt intent in construction fraud.” 15 Va. App. at 330, 423 S.E.2d at 211. And, as the Supreme Court of Virginia not ed in Wilson v. Commonwealth , 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995), “Intent is a state of mind that may be proved by an accused’s acts or by his statements and that may be shown by circumst antial evidence.” Such circumstances, summarized above, include the following: At the time appellant received the advance, he was to begin work on the following Friday and continue thereafter. He never returned to th e job. Though appellant claimed he had purchased paint with the advance, he had no receipt for the same. According to Minetree, no paint color had ever been chosen. Finally, appellant’s testimony that Minetree did not wa nt him back on the job contrasts with Minetree’s testimony that he reques ted appellant return thro ughout “the whole month of May.” As this Court no ted in Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998), “[I]n its ro le in judging witne ss credibility, the fact finder is entitled to disbelieve the self-serving testimony of the ac cused and to conclude that the accused is lying to conceal his guilt.” We conclude the evidence suffices to establish the element of fraudulent intent. Appellant’s conviction is affirmed. Affirmed.