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Dennos v. Commonwealth

Court of Appeals of Virginia, Chesapeake

March 11, 2014

Alexander J. DENNOS, Jr.
v.
COMMONWEALTH of Virginia.

Page 914

W. McMillan Powers, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Susan Baumgartner, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and ALSTON, JJ.

KELSEY, Judge.

[63 Va.App. 141] The trial court convicted Alexander J. Dennos, Jr., of two counts of construction fraud, in violation of Code ยง 18.2-200.1. On appeal, Dennos claims that the evidence was insufficient to find him guilty and that the single-larceny doctrine required the court to merge the charges into a single count. Disagreeing with both assertions, we affirm.

I.

On appeal, we review the evidence in the " light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle 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 therefrom." [63 Va.App. 142] Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

In addition, " an appellate court's ‘ examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.’ " Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)).

Page 915

Instead, " ‘ an appellate court must consider all the evidence admitted at trial that is contained in the record.’ " Id. (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586); see also Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).

The evidence at trial showed that Dennos entered into an oral contract on May 18, 2012, with Marilyn Bradley to " seal" the leaks in her roof. App. at 24-25. His contractual fee was $1,000 for the sealing job. Dennos requested a check for $1,000 from Bradley and then promptly cashed it the same day.

The next day, May 19, 2012, Dennos returned unannounced to Bradley's home— not to begin the job, but to explain that the sealing contract would not fix the leaky roof. Instead, he suggested they enter into a new contract to replace the roof. The fee for replacing the roof, he said, would be $3,700. Dennos requested, and Bradley provided that same day, another $1,800 check which Dennos said he would use (in addition to the earlier $1,000) as an advance.

Dennos produced a written contract, which Bradley signed, for the roof replacement. The one-page, standard form contract was inaptly titled " Pest Control Service Agreement" and identified Dennos as an " Inspector" for A-Atlantic Termite & Pest Control. Id. at 102. Two days later, Dennos cashed the $1,800 check.

Dennos never returned to Bradley's home either to seal or to repair her roof, never ordered any shingles, and never hired any workers. Over many weeks, Bradley made fifteen to twenty phone calls to Dennos. On one occasion, about a month after signing the contract, Dennos dropped off a few " sample" shingles. Id. at 30, 38. On the few occasions in [63 Va.App. 143] which Bradley was able to get Dennos on the phone, he would give her a date for delivery of the shingles and " a date that the roof would be done" which would come and go without ...


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