Wynne v. Com., 0035-91-1

• Decision Date: 09 November 1993
• Docket Number: No. 0035-91-1,0035-91-1
• Citation: 437 S.E.2d 195,17 Va.App. 277
• Parties: David I. WYNNE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 195

437 S.E.2d 195

17 Va.App. 277

David I. WYNNE v. COMMONWEALTH of Virginia.

Record No. 0035-91-1.

Court of Appeals of Virginia.

Nov. 9, 1993.

Order Granting Rehearing En Banc Dec. 20, 1993.

Frank K. Friedman (William B. Poff, Franklin A. Swartz, Calvin A. DePew, Jr., Woods, Rogers & Hazlegrove, Rabinowitz, Rafal, Swartz & Gilbert, P.C., on briefs), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present BAKER, KOONTZ ^* and WILLIS, JJ.

OPINION

WILLIS, Judge.

On appeal from his bench trial conviction of obtaining money by false pretenses in violation of Code § 18.2-178, David I. Wynne contends (1) that the evidence was insufficient to prove that he made false statements rising to the level of fraud, (2) that the evidence was insufficient to prove that any allegedly false statements made by him induced Sumitomo, Inc. to make its contribution, and (3) that the evidence was insufficient to prove that he intended to defraud. We find no error and affirm the judgment of the trial court.

On appeal [of a criminal conviction], 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 court 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).

On July 2, 1988, as Mayor of the City of Chesapeake, Wynne entertained officials from the Chinese Embassy. The city reimbursed him for the cost of food served but, consistent with city policy, refused to pay for alcoholic beverages. The Chamber of Commerce reimbursed Wynne for the alcoholic beverages. On October 5, 1989, the city gave and paid the full costs of a reception for the Austrian Ambassador. The Chinese and Austrian receptions were the only occasions on which foreign dignitaries were entertained officially while Wynne served as Mayor of Chesapeake.

Betty Calloway, City Clerk since 1982, testified that she handled travel arrangements for the Mayor and the members of the City Council. Upon submitting receipts for expenses connected with official travel, the traveler was reimbursed. The city also provided travel advances. The unused portion of any travel advance was to be returned to the city.

In June, 1989, Wynne attended a Mayor's Conference in Charleston, South Carolina. The city advanced him $1,100 against the expenses of this trip. The expenses totaled only $246.49, and he owed the city a refund of $853.51. In September, 1989, the city advanced Wynne $375 for travel to Washington, D.C. and $405 for travel to New Orleans. His expenses on these trips fell short of the advances. He owed the city refunds of $287.64 for the Washington, D.C. trip and $268.07 for the New Orleans trip.

Upon Wynne's return from the trips, Ms. Calloway reminded him that he was required to submit his expenses and to repay any amounts that he owed the city. In December, 1989, she told him that the city's finance department had inquired about the reimbursement. On December 12, 1989, Wynne told Ms. Calloway that he had lost the hotel bill from Charleston and asked her to get another one. She did so. At the same time, he told her that he expected to receive some money and that he would then repay the city.

On December 11, 1989, Wynne met with Mr. Imai and Mr. Enoki, local executives of the Mitsubishi Kasei Corporation of Tokyo. He told them that he needed money for entertainment and travel expenses that the city would not reimburse because of its limited budget. He did not tell them that he owed the city money. He told them that he had established a fund called Friends of David Wynne through which he had raised approximately $18,000 to $20,000 in the last year or two. He said that individual businesses gave between $3,000 and $5,000. He asked that Kasei contribute to that fund.

In late November or early December, 1989, Wynne arranged a December 12 meeting with Mr. Yamazaki and Mr. Cali of Sumitomo, Inc. Lynne Jenkins, Wynne's fund-raiser, also attended the meeting. At the meeting, Wynne told the Sumitomo executives that he was seeking private contributions to help defray the costs of entertaining foreign dignitaries. He told them that in the previous year he had solicited about $15,000 from various corporations, and that a company usually gave between $1,000 and $5,000.

The Sumitomo executives decided to make a contribution. Mr. Cali's secretary called and was told by Lynne Jenkins that the contribution check should be made payable to "Friends of David Wynne 1990." Because this designation sounded like a political contribution and Sumitomo did not make political contributions, Mr. Cali sent Sumitomo's $1,000 contribution in the form of a check made payable to "Mayor David Wynne." A letter attached to the check noted that the money was "to help defray your expenses entertaining foreign dignitaries." Wynne acknowledged the check, writing to Mr. Cali:

Thank you very much for your assistance in defraying some of the costs of the office. As you know, there are expenses from time to time relating to official travel and entertainment.

Last year we entertained officials from the Chinese Embassy. The costs of the evening were underwritten in part by the Chamber and members of the business community. Since the city adopted very strict requirements on these expenses, it has been necessary to use private funds on occasion.

Mr. Yamazaki testified that Sumitomo would not have contributed funds to discharge Wynne's personal debt.

Betty Calloway testified that she saw the Sumitomo check and letter when they arrived in the office on January 15 or 16, 1990. She noticed that the letter stated that the check was to defray the expenses of entertaining foreign dignitaries. She testified that on January 18, 1990 Wynne told her that he was going to use the Sumitomo check to repay his travel debt. He asked whether he could endorse the check to the city. Ms. Calloway stated that she preferred that he write another check. On January 19, 1990, Ms. Calloway asked for the Sumitomo letter so that she could make a copy for her files, the normal procedure. Wynne told her that he had thrown it out in the trash.

On January 19, 1990, Wynne opened a bank account entitled "Friends of Mayor Wynne 1990." He deposited the Sumitomo check and received back $100 cash. On the same day, from that account, he reimbursed the city $853.51, the unused portion of the Charleston advance.

Code § 18.2-178 provides:

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; or if he obtain, by any false pretense or token, with such intent, the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony.

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. Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807 (1977); see also Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977); Watson v. Commonwealth, 4 Va.App. 450, 358 S.E.2d 735 (1987).

Wynne first contends that the evidence failed to prove that he made false statements rising to the level of fraud. The record does not support this contention. Wynne specifically told the representatives of both Kasei and Sumitomo that he needed contributions to defray unreimbursed expenses incurred by him in entertaining foreign dignitaries. He specifically referred to the Chinese delegation. Yet, the evidence established that Wynne had been fully reimbursed for all expenses incurred by him in entertaining foreign dignitaries. The city paid all expenses in connection with entertaining the Austrian Ambassador. The city and the Chamber of Commerce paid all expenses in connection with the Chinese reception.

Wynne also told the representatives of Kasei and Sumitomo that he had previously established funds and had received contributions from private businesses to assist in entertaining foreign representatives. This was untrue. Although the Chamber of Commerce, an agency supported by private business, had paid some of the costs of the Chinese reception, Wynne expressly and falsely asserted that both the Chamber and private businesses had contributed. He went so far as to specify the monetary range into which most private business contributions fell. That Wynne made the false representations for the purpose of obtaining money is obvious from his solicitation and acceptance of the resulting contribution.

Wynne next contends that the evidence failed to prove that any allegedly false statements made by him induced Sumitomo to make its contribution. The record denies this contention. Sumitomo's representatives testified that Wynne solicited their aid for the express purpose of defraying otherwise unreimbursable expenses incurred by him in entertaining foreign dignitaries. They testified that Sumitomo's contribution was made for that express purpose. They testified that Wynne did not tell them that he was indebted to the city and that they would not have made a contribution to repay his debt to the city. Mr. Cali's January 12, 1990 letter, which accompanied Sumitomo's check, and Wynne's January 19, 1990 letter of acknowledgment confirm this understanding.

Finally, Wynne contends that the evidence failed to prove his intent to defraud. Again, this contention is refuted by the record. Pressed by the city for reimbursement of the unused...