Smith v. Commonwealth, Record No. 1146-19-4

• Docket Nº: Record No. 1146-19-4
• Citation: 72 Va.App. 523, 850 S.E.2d 381
• Case Date: December 01, 2020
• Court: Court of Appeals of Virginia

72 Va.App. 523
850 S.E.2d 381

Paula Jo SMITH
v.
COMMONWEALTH of Virginia

Record No. 1146-19-4

Court of Appeals of Virginia.

DECEMBER 1, 2020

James Joseph Ilijevich, Fredericksburg, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Malveaux and Athey

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

72 Va.App. 529

Paula Jo Smith appeals her conviction for defrauding an innkeeper in violation of Code § 18.2-188. On appeal, she contends that the evidence was insufficient to support her conviction because it did not prove she had the requisite intent to defraud. The appellant also maintains that the trial court erred by making numerous evidentiary rulings that improperly limited her ability to show that she had difficulty paying for her stay at the hotel. We hold that the evidence established that the appellant formed the requisite intent to defraud the hotel owner. Regarding the challenged evidentiary rulings, the appellant's failure to proffer the related line of questioning and expected answers bars this Court's review of one of the alleged errors. Further, in another instance, in which the appellant made a proper proffer, the trial court did not abuse its discretion by excluding evidence on relevance grounds. Finally, we hold that if the trial court erred by limiting the appellant's testimony in two additional areas, any such errors were harmless. Accordingly, we affirm the conviction.

I. BACKGROUND¹

The appellant lived with her children at a hotel for about a year. After falling

850 S.E.2d 385

behind in her room payments, she

72 Va.App. 530

moved out of the hotel without paying her outstanding balance. As a result, the Commonwealth charged her with one count of defrauding an innkeeper.

At trial, the evidence established that when the appellant began living in the hotel in 2016, she paid for her room in advance each week in order to receive a discounted rate of $40 per day. However, in June 2017, she began falling behind on her payments. The hotel manager, Shanita Smith, and the hotel's owner, Nilaykumar Patel, spoke with the appellant about her outstanding balance. She assured them that she would pay in full "before she left." Patel allowed the appellant to remain at the hotel but increased her daily rate to $59.99.

Patel testified that after he spoke with the appellant in the middle of June about her outstanding balance, she started complaining about bugs in her room. Patel offered her a different room, but she declined to move. No other guests had complained about bugs, but Patel nevertheless had a pest control company treat the appellant's room.

The appellant made a $140 cash payment toward her room balance in late June and a $300 cash payment in early July. However, she made no further payments after July 4, and when she left the hotel on July 27, 2017, she had an outstanding balance of more than $2,000. She moved to a different hotel, using $1,000 that she had saved from her disability checks.

On the morning of July 27, 2017, Hotel Manager Smith learned that the appellant had left without "check[ing] out ... at the front desk." After unsuccessful attempts to contact the appellant, Smith and Patel reported her actions to Sergeant W. Kreider of the Stafford County Sheriff's Office. Kreider spoke with the appellant on the phone. She told him that she was "going to get a job and try to work out arrangements to make payments." The appellant subsequently phoned Patel

72 Va.App. 531

and told him that she wanted to set up a payment plan. However, she did not return to the hotel or make any payments despite having income from a new job that she started on August 13, 2017.

The appellant testified in her own defense. She said that she did not fall behind in her room payments until after her rate increased in June 2017. She claimed that she first complained about bugs in her room in late 2016. According to the appellant, Patel did not have her room treated for bugs until she showed "the infestation" to a health inspector who came to her room over six months later, in late July 2017.

The appellant alleged that when she returned to the hotel after her room had been treated, Patel "verbally assaulted" her. She said that she was embarrassed by the incident and decided to leave the hotel later that night. She also explained that she abruptly left the hotel with her children for her "safety," "health," and "well-being." Further, she testified that she was upset that Patel had "changed [her] payment at the last minute." The appellant said that after paying "$25,000 to $30,000" to live there, she believed that she "had given [Patel] enough money." According to the appellant, because Patel "chang[ed her] bills at the last minute," she did not think it was "right for [her] to have to pay [him] any[ ]more money than [she] already had."

The appellant moved to strike the evidence at the end of the Commonwealth's case-in-chief and at the close of all the evidence. The trial court denied both motions. The jury convicted the appellant of defrauding an innkeeper. The court imposed the jury's sentence of one week in jail and a fine of $2,500. It also ordered the appellant to pay restitution of $2,284.

II. ANALYSIS

The appellant challenges the sufficiency of the evidence to support her conviction for defrauding an innkeeper. She also maintains that the trial court made several erroneous rulings on the admissibility of certain evidence.

850 S.E.2d 386

72 Va.App. 532

A. Sufficiency of the Evidence

The appellant suggests that the evidence is insufficient to prove that she acted with the requisite intent because it does not show that she intended to defraud the owner at the time she "put up" at the hotel. Intent is the only element of the offense that she contests on appeal.

When reviewing the sufficiency of the evidence, "this Court ‘must affirm the conviction unless it is plainly wrong or without evidence to support it.’ " Brown v. Commonwealth, 68 Va. App. 746, 786-87, 813 S.E.2d 557 (2018) (quoting Gerald v. Commonwealth, 68 Va. App. 167, 172, 805 S.E.2d 407 (2017) ). "This deferential standard ‘requires us to "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" ’ from that evidence." Green v. Commonwealth, 72 Va. App. 193, 200, 843 S.E.2d 389 (2020) (alteration in original) (quoting Vasquez v. Commonwealth, 291 Va. 232, 236, 781 S.E.2d 920 (2016) ). "This standard ‘applies not only to the historical facts themselves, but [also to] the inferences from those facts.’ " Id. (alteration in original) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904 (2009) (en banc )). Further, "[t]o the extent our analysis of the sufficiency of the evidence requires us to examine the statutory language, we review issues of statutory construction de novo on appeal." Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706 (2015).

The relevant statute, Code § 18.2-188(1), states in pertinent part that "[i]t shall be unlawful for any person, without paying therefor, and with the intent to cheat or defraud the owner or keeper to ... [p]ut up at a hotel." Under this statute, the Commonwealth must prove that the defendant harbored an "intent to cheat or defraud" at the time she "[p]ut up at a hotel." Code § 18.2-188(1). A person who "[p]ut[s] up at a hotel" without intending to pay for her stay has violated the statute. Id.

The appellant relies on the language in the statute, which makes clear that the intent to defraud must exist at the

72 Va.App. 533

time that the defendant "put up" at a hotel. She suggests that "put up" references the specific time when she checked in or began lodging at the hotel. In support of this argument, she cites Caldwell v. Commonwealth, 298 Va. 517, 840 S.E.2d 343 (2020).

This sufficiency challenge requires the Court first to determine what the term "put up" means in the context of Code § 18.2-188(1) and then, applying appropriate deference to the determinations of the trier of fact, to look to the facts in this case. The phrase "put up" is not defined in the statute, so we rely on settled principles of statutory construction to determine its meaning.

We begin our analysis with "the plain meaning of the words contained in the statute," which reflect the General Assembly's intent. Salazar v. Commonwealth, 66 Va. App. 569, 577, 789 S.E.2d 779 (2016) ; see Jones v. Commonwealth, 296 Va. 412, 415, 821 S.E.2d 540 (2018). "[C]ourts ‘are required to ascertain and give effect to the intention of the legislature, which is usually self-evident from the statutory language.’ " Armstead v. Commonwealth, 55 Va. App. 354, 360, 685 S.E.2d 876 (2009) (quoting Johnson v. Commonwealth, 53 Va. App. 608, 612, 674 S.E.2d 541 (2009) )....