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In an unpublished opinion, a three-judge panel of the Court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