Parker v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, and
Goodwyn, JJ., and Carrico, S.J.

MALCOLM PARKER
OPINION BY
v. Record No. 070703 SENIOR JUSTICE HARRY L. CARRICO
January 11, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

A jury convicted the defendant, Malcolm Parker, of the

felony of obtaining money in excess of $200.00 under false

pretense in violation of Code § 18.2-178. The jury fixed the

defendant’s punishment at four months in the Fairfax County

Adult Detention Center and a fine of $2,500.00. The trial court

denied the defendant’s motion to set aside the verdict, imposed

the sentence fixed by the jury, and imposed an additional two-

year term suspended subject to post-release supervision pursuant

to Code § 19.2-295.2.

In an unpublished opinion, a three-judge panel of the Court

of Appeals of Virginia, with one judge dissenting, reversed the

defendant’s conviction. Upon rehearing en banc, a majority of

the court, by order, vacated the panel’s mandate and affirmed

the trial court’s judgment for the reasons stated in the panel’s

dissenting opinion. We awarded the defendant this appeal.

FACTUAL BACKGROUND

The evidence shows that in late March of 2003, Steven

Michael Needels, an undercover detective of the Fairfax County
Police Department, telephoned Brittany A. Seiler to arrange the

purchase of 150 pills of ecstasy, a controlled amphetamine.

Needels had been in contact with Brittany previously, but she

did not know he was a detective. Brittany was the defendant’s

girlfriend, and he was in the room with her when Needels called

to arrange the ecstasy purchase. The defendant told Brittany

the price to quote, and a figure of $2,350.00 for 150 ecstasy

pills was agreed upon by Needels and Brittany.

Needels and Brittany arranged to meet at a parking lot on

April 1 to consummate the transaction. Needels arrived at the

appointed time in possession of $2,350.00 belonging to the

Fairfax County Police Department. Brittany arrived shortly

thereafter in a vehicle driven by the defendant who had supplied

her with 150 fake ecstasy pills to give to Needels. Brittany

left the defendant’s vehicle and entered Needels’ automobile.

According to Needels’ testimony, Brittany took an “orangish

pill bottle” from her purse, handed it to him, and said, “these

are the pills.” He handed her the $2,350.00 and “opened the

[bottle of] pills.” Thinking “they didn’t look like real

ecstasy pills,” he asked Brittany if she was “sure these are

real.” She replied, “yeah, they’re real,” and quickly left the

car.

When asked why he gave Brittany the money in spite of his

doubt about the pills, Needels said he gave her the money

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“because on past experience with her [he had not] had a

problem.” When pressed later in his testimony about the order

in which things “happened inside the car,” Needels said:

“Whether I opened the pills before I handed her the money or it

happened simultaneously, honestly I’m not clear on that.”

However, when Brittany testified as a witness for the

Commonwealth, she was clear about the order in which things

happened. While under cross-examination by defense counsel, she

was shown the “bottle of fake pills,” and the following repartee

ensued:

Q. You handed that bottle to Needels?
A. Yes.
Q. Didn’t he look at the pills?
A. Yes.
Q. Did he tell you they were fake?
A. He said they looked fake.
Q. And didn’t you say no, they’re real?
A. Yes.
Q. Didn’t he then give you the money?
A. Yes.
Q. And you left?
A. Yes.

When Brittany left Needels’ automobile, she entered the

defendant’s vehicle and gave him the $2,350.00. He gave her

$300.00 as her share. She was arrested later the same day and

charged with obtaining money under false pretense.

After the defendant and Brittany departed the parking lot,

Needels field-tested the pills and found they were not ecstasy.

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Later laboratory tests confirmed that the pills were not

ecstasy.

ANALYSIS

Code § 18.2-178 provides in pertinent part that “[i]f any

person obtain, by any false pretense or token, from any person,

with intent to defraud, money . . . he shall be deemed guilty of

larceny thereof.” A criminal false pretense has been defined as

follows:

[T]he false representation of a past or existing fact,
whether by oral or written words or conduct, which is
calculated to deceive, intended to deceive, and does in
fact deceive, and by means of which one person obtains
value from another without compensation. According to the
definition, the false pretense must be a representation as
to an existing fact or past event. False representations
amounting to mere promises or statements of intention have
reference to future events and are not criminal within the
statute, even though they induce the party defrauded to
part with his property. But if false representations are
made, some of which refer to existing facts or past events,
while others refer solely to future events, a conviction
may be had if it is shown that any of the representations
as to existing facts induced the complaining witness to
part with his property.

Hubbard v. Commonwealth, 201 Va. 61, 66, 109 S.E.2d 100, 104

(1959) (citations and internal quotation marks omitted).

In a prosecution under the statute, the Commonwealth must

prove four elements, as follows:

(1) [A]n intent to defraud; (2) an actual fraud; (3) use of
false pretenses for the purpose of perpetrating the fraud;
and (4) accomplishment of the fraud by means of the false
pretenses used for the purpose, that is, the false
pretenses to some degree must have induced the owner to
part with his property.

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Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807

(1977) (citation and internal quotation marks omitted).

The defendant’s sole contention is that the Commonwealth

failed to prove element (4), relating to inducement. “The true

enquiry,” therefore, “is whether the false pretense, either

operating alone or with other causes, had a controlling

influence, or that without such pretense the owner would not

have parted with his goods.” Trogdon v. Commonwealth, 72 Va.

(31 Gratt.) 862, 884-85 (1878).

“[U]pon appellate review, the evidence and all reasonable

inferences flowing therefrom must be viewed in the light most

favorable to the prevailing party in the trial court.”

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003) (citations and internal quotation marks omitted).

Accordingly, in this case, we view the evidence in the light

most favorable to the Commonwealth.

The defendant states that the “first step in the analysis

is to identify the false pretense.” The defendant then argues

that Brittany’s statement that “these are the pills” does not

qualify as a false pretense. The defendant says the statement

“is not in fact false” because the bottle actually contained

pills.

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 The defendant maintains that the false pretense did not

come until later in the transaction when Brittany told Needels

the pills were real. By then, according to the defendant,

Needels had already given Brittany the money and had seen for

himself that the pills were fake.

The defendant says that “[f]undamentally, . . . Detective

Needels expected [Brittany] Seiler to give him 150 pills of

ecstasy . . . but his expectation was not induced by a false

representation of past or present fact.” Instead, the defendant

asserts, Detective Needels’ expectation was founded solely “on

past experience with her [when he did not have] a problem.”

And, the defendant concludes, “[b]ecause the Commonwealth did

not prove that Detective Needels parted with the buy funds in

reliance on a false representation of past or present fact, [the

defendant] could not have been guilty as a principal in the

second degree.”

We disagree with the defendant. In the first place,

according to Needels’ testimony, “these are the pills” were the

first words Brittany uttered after she entered Needels’

automobile. We hold that this statement was a false pretense.

Brittany did not say “these are pills.” She said, “these are

the pills” (emphasis added), meaning, in the context of the sale

transaction that these were the ecstasy pills Needels had

arranged to buy. It is undisputed that Brittany made the

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statement before Needels gave her the money or anything else

transpired.

Moreover, if the jury believed Brittany’s testimony, as it

was entitled to do, it could reasonably have found that Needels

did not give her the money until after she had told him the

pills were real. Brittany testified very clearly that she

handed the pill bottle to Needels, he looked at the pills and

said they “looked fake,” she said “no, they’re real,” and he

“then [gave her] the money” (emphasis added).

Finally, Needels’ statement that he gave Brittany the money

because of his “past experience” with her does not necessarily

preclude a finding that his expectation of what Brittany would

give him was induced by a false representation of past or

present fact. Rather, the jury could reasonably have

interpreted Needels’ statement to mean that he had chosen to

believe Brittany’s representations that “these are the pills”

and that the pills were “real” because he had found her truthful

in the past and thought he could rely upon her assurances of

authenticity under the then existing facts.

CONCLUSION

As in Trogdon, under the evidence in this case, whether

Needels, “without such pretense . . . would not have parted with

his goods . . . was peculiarly [a question] for the jury.” 72

Va. (31 Gratt.) at 885. And this Court “cannot set aside the

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[jury’s] verdict unless the finding is shown to be either in

conflict with or wholly unsupported by the evidence.” Id. The

verdict in this case suffers from neither fault, and we will

therefore affirm the Court of Appeals’ judgment.

Affirmed.

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