Norman v. Com., 0766-85

• Decision Date: 15 July 1986
• Docket Number: No. 0766-85,0766-85
• Citation: 2 Va.App. 518,346 S.E.2d 44
• Parties: Robert L. NORMAN, v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 44

346 S.E.2d 44

2 Va.App. 518

Robert L. NORMAN, v. COMMONWEALTH of Virginia.

Record No. 0766-85.

Court of Appeals of Virginia.

July 15, 1986.

William E. Bobbitt, Jr., Staunton, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before KOONTZ, COLEMAN and MOON, JJ.

MOON, Judge.

Robert L. Norman was convicted in the Circuit Court of Augusta County on a charge of failure to perform promised construction in return for advances of money. He seeks reversal upon the grounds that the evidence was insufficient to prove that he intended to defraud when he received the advances and for the further reason that he offered to substantially make good such advances. We disagree and affirm.

Code § 18.2-200.1 states:

If any person obtain from another an advance of money, merchandise or other thing, of value, with fraudulent intent, upon a promise to perform construction, removal, repair or improvement of any building or structure permanently annexed to real property, and fail or refuse to perform such promise, and also fail to substantially make good such advance, he shall be deemed guilty of the larceny of such money, merchandise, or other thing.

(emphasis added).

Defendant admits that he obtained the advance of money, made a promise to perform construction, and failed to perform.

To determine whether or not there was fraudulent intent we look to the conduct and representations of the defendant. Cunningham v. Commonwealth, 219 Va. 399, 402, 247 S.E.2d 683, 684 (1978); Riegert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 808 (1977). Whether fraud actually existed will depend upon the circumstances of each case. Shoemaker v. Cake, 83 Va. 1, 5, 1 S.E. 387, 389 (1887).

Where the sufficiency of the evidence is challenged on appeal, that evidence must be construed in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); see Code § 8.01-680. In so doing we 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 that may 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)), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981).

Norman was president of Dey, Inc., which was developing into a time sharing resort property known as Ingleside. Roy G. BeMent, a resident of Sarasota, Florida, invested $40,000 with Norman for two shares in Dey, Inc. BeMent had trouble securing information from Norman concerning the progress of the development. Finally, on an inspection trip, he learned from Norman that the Ingleside deal had "gone sour." However, Norman assured BeMent that his $40,000 investment would be "rolled over" into the Lake Rhema campground time sharing project. On October 4, 1982, Norman and BeMent entered into an agreement whereby BeMent would pay an additional $20,000 for which BeMent would be entitled to rent Lots 6 and 12 for 99 years, with cabins to be built by Norman on those lots by March 1, 1983. The price of each lot was $30,000, a total of $60,000, $40,000 of which being the original sum paid by BeMent plus $20,000 more he was to pay. To persuade BeMent into accepting the offer and paying the additional $20,000, Norman gave BeMent a personal tour of the site and repeatedly assured BeMent that he had bought and stored in a warehouse all the equipment and furnishings needed for twenty cabins. The agreement signed on October 4, 1982, specifically stated that the rental fee of $30,000 per lot was to be placed in an escrow account at the Bank of Rockbridge. It further provided that the escrow funds would be paid in increments by the escrow agent, the bank, to Norman only upon: (1) delivery of a properly executed lease; and (2) satisfaction that the log cabin had been completed. Norman even went so far as to drive past and point...