COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Kelsey and Alston
Argued at Richmond, Virginia
SUSAN A. WILSON, A/K/A
SUSAN A. JONES
MEMORANDUM OPINION* BY
v. Record No. 0550-11-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 14, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Thomas V. Warren, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for appellant.
(Kenneth T. Cuccinelli, II, Attorney General; Rosemary V. Bourne,
Assistant Attorney General, on brief), for appellee.
A jury found Susan A. Wilson guilty of two counts of unlawfully obtaining documents
from the Department of Motor Vehicles (DMV) in violation of Code § 46.2-105.2(A) and one
count of grand larceny in violation of Code § 18.2-95. On appeal, Wilson argues the evidence
was insufficient to prove her guilt. We disagree and 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.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
759 (1980) (emphasis and citation omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Our review of the facts “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)). 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).
From this perspective, the evidence at trial showed Wilson and her former husband, Carl
Jones, divorced in January 2007. The final divorce decree incorporated a property settlement
agreement, along with an addendum, allocating ownership rights to marital property. One
provision of the agreement transferred “the parties’ boats, trailers and equipment” to Jones,
giving him “sole use, possession, and enjoyment of said items as of the date of the execution of
this agreement . . . .” App. at 138. After the divorce, Jones exclusively possessed the boats and
trailers, keeping them in the yard of his residence.
Around July 23, 2009, Wilson signed the title to one of the boats “as seller” and delivered
the title to the secretary of Jones’s legal counsel. Id. at 44, 165. At that time, Wilson did not
assert any claim of ownership in the boat. After receiving the boat title, however, Jones’s
counsel never filed it with the Virginia Department of Game and Inland Fisheries (DGIF).
Jones died on September 19, 2009. Less than two weeks later, on October 2, Wilson
visited a DGIF office and represented she had “lost” the boat title and needed a replacement. Id.
at 21-22, 160. In her application for the boat title, Wilson certified “under penalty of perjury”
that she and her new husband owned the boat and that “all other matters stated herein are true
and correct ([a]s required by § 29.1-702.1 – Code of Virginia).” Id. at 159. Based upon these
representations, DGIF issued a replacement boat title identifying Wilson and her new husband as
joint owners.
-2-
Wilson then went to a DMV office with the same story about the boat trailer title. She
claimed it, too, had been “lost” and she needed to secure a replacement title. Id. at 65-66. In her
application, Wilson identified herself and Jones as co-owners with right of survivorship. Wilson
provided her “Owner’s Signature” certifying all the facts in the application were “true and
valid.” Id. at 152. Based upon this application, the DMV issued Wilson a replacement
document of title on October 28.
A few weeks later, on November 17, Wilson appeared at the DMV office with Jones’s
death certificate and applied for a new document of title for the trailer listing herself as the sole
owner. Signing again as owner, Wilson certified the veracity of her claim. See id. at 155. Based
on Wilson’s representations, DMV removed Jones’s name and issued the new document of title
to Wilson.
On November 22, Wilson took the boat and trailer from Jones’s former residence. The
value of each exceeded $200. See App. at 58, 117 (stipulation at trial); Oral Argument Audio
2:35-43 (acknowledging trial stipulation). A grand jury indicted Wilson for unlawfully obtaining
documents of title from DMV and for grand larceny of the boat and trailer.
At trial, Wilson claimed she had every right to apply for replacement titles and to take
possession of the boat and trailer. She alleged Jones still owed her $50,000 under the addendum
to the property settlement agreement. Taking his boat and trailer (along with securing
documents of title for both), Wilson argued, was simply a reasonable self-help remedy.
Despite Wilson’s allegations, her counsel expressly disavowed any assertion of a claim-
of-right defense and declined to offer an instruction on the issue. Id. at 119, 121.1 Counsel
1
At the close of Commonwealth’s evidence, Wilson’s counsel appeared to raise a “claim
of right” defense in the context of a motion to strike. App. at 73. He did not, however, assert
this argument during his motion to strike at the close of all of the evidence. Id. at 118-19; see
-3-
instead made a claim of “ownership,” arguing Wilson was the “title owner” pursuant to DMV
records. Id. at 118. On this ground, Wilson’s counsel contended the charges should be
dismissed given the absence of any evidence that “somehow or another the DMV record was
altered.” Id. After the trial court denied Wilson’s motion to strike, the jury found Wilson guilty
of all charges and imposed a $2,500 fine for each violation.
II.
On appeal, Wilson claims the jury erred in finding her guilty of two counts of unlawfully
obtaining documents from DMV in violation of Code § 46.2-105.2(A) and one count of grand
larceny in violation of Code § 18.2-95. Though her argument has several layers, it rests on the
general premise that she co-owned the boat and trailer, and thus, did nothing wrong in obtaining
the title documents and retrieving the boat and trailer after Jones’s death. We disagree with the
legal framework on which Wilson builds her argument, as well as her challenge to the rationality
of the jury’s factfinding.
A. STANDARD OF APPELLATE REVIEW
“An appellate court does not ‘ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193,
677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307,
318-19 (1979)); see also Cavazos v. Smith, 132 S. Ct. 2, 3 (2011) (reaffirming Jackson standard).
“Rather, the relevant question is whether ‘any rational trier of fact could have found the essential
generally McDowell v. Commonwealth, 282 Va. 341, 342, 718 S.E.2d 772, 774 (2011) (holding
“in a bench trial, at the very least, [the litigant] must reassert the issues raised in his original
motion to strike in his closing argument in order to preserve the issues for appeal” (citing
Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 75 n.4, 83-84, 688 S.E.2d 199, 205 n.4, 210
(2010))). At the close of the evidence, Wilson’s counsel disclaimed any reliance on the claim-
of-right theory. See App. at 119.
-4-
elements of the crime beyond a reasonable doubt.’” Williams, 278 Va. at 193, 677 S.E.2d at 282
(citation omitted and emphasis in original). When a jury has rendered its verdict, “it is not for
this court to say that the evidence does or does not establish his guilt beyond a reasonable doubt
because as an original proposition it might have reached a different conclusion.” Cobb v.
Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929). Suffice it to say, an “appellate
court is no substitute for a jury.” Id.
B. UNLAWFULLY OBTAINING DMV TRAILER DOCUMENTS
Wilson challenges her conviction for unlawfully obtaining documents from the DMV in
violation of Code § 46.2-105.2(A). She argues she could not have violated the statute because,
as a matter of law, she could lawfully claim ownership until and unless Jones went to the DMV
and obtained a title solely in his name.2 We disagree.
Among other things, Code § 46.2-105.2(A) makes it “unlawful for any person to obtain a
. . . certificate of title, or other document issued by the Department if such person . . . is
otherwise not legally entitled thereto . . . .” Code § 46.2-105.2(A) (emphasis added). To be
“legally entitled,” id., to a DMV document of title, the applicant must have a legally enforceable
interest in the property.
In this case, Wilson voluntarily relinquished “any and all interest,” App. at 138, to the
boat and trailer by entering into the property settlement agreement and addendum, which were
2
On appeal, Wilson also argues the absence of any transfer endorsement by her on the
trailer document of title (with delivery of it to Jones) invalidates her convictions under Code
§ 46.2-105.2(A). The Commonwealth, however, points out Wilson never made this argument in
the trial court and thus cannot raise it for the first time on appeal. We agree. Under settled
principles, the “same argument must have been raised, with specificity, at trial before it can be
considered on appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719
(2004). “Making one specific argument on an issue does not preserve a separate legal point on
the same issue for review.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444,
448 (2003) (en banc), aff’d by unpublished order, No. 040019 (Va. Oct. 15, 2004).
-5-
incorporated by reference into the 2007 final divorce decree. See Shenk v. Shenk, 39 Va. App.
161, 174, 571 S.E.2d 896, 903 (2002) (noting similar language used in an agreement transferred
“‘all’ of [husband’s] rights,” to wife, not solely “bare legal title”). The agreement vested Jones
with “sole use, possession, and enjoyment” of the boat and trailer “as of the date of the execution
of this agreement . . . .” App. at 138. No later amendment changed this provision of the
agreement. No later court order amended the final decree incorporating the agreement. Neither
the agreement nor the decree (vis-à-vis Wilson) conditioned the vesting in Jones of sole
ownership of the trailer upon his later retitling it with DMV. At no point after the agreement and
decree, therefore, was Wilson “legally entitled” under Code § 46.2-105.2(A) to claim on two
DMV title applications to be either the sole owner or co-owner of the boat trailer.
A valid property settlement agreement, incorporated by a divorce decree, binds the
parties to the allocation of marital property specifically addressed in the agreement. See
Campbell v. Campbell, 32 Va. App. 351, 355-56, 528 S.E.2d 145, 147 (2000). By the terms of
an agreement, parties may relinquish or waive claims to property interests of their respective
spouse, Southerland v. Southerland, 249 Va. 584, 589, 457 S.E.2d 375, 378 (1995), as “[e]very
person . . . is entitled to dispose of [his] property, in such manner and upon such terms as he
chooses,” Galloway v. Galloway, 47 Va. App. 83, 92, 622 S.E.2d 267, 272 (2005) (quoting
Smyth Bros. v. Beresford, 128 Va. 137, 170, 104 S.E. 371, 382 (1920)).
Notwithstanding the property settlement agreement and the divorce decree, Wilson
contends Jones had a legal obligation pursuant to the “mandatory provisions” of Code
§ 46.2-633(A) to secure a new document of title in his own name.3 Because he failed to do so
3
Given our holding, we need not decide whether Code § 46.2-633(A) applies to title
transfers required by property settlement agreements incorporated into divorce decrees.
-6-
before his death, Wilson reasons, she was free to seek a retitling of the trailer solely in her name.
Again, we disagree.
The DMV title recordation statutes serve to protect third parties (like bona fide
purchasers and lien holders) from unrecorded transfers of title. The statutes “afford a simple
method of recording such lien on the title certificate of the vehicle through a central agency,”
General Credit, Inc. v. Winchester, Inc., 196 Va. 711, 717, 85 S.E.2d 201, 204 (1955), and
designate a single place where a potential “creditor or purchaser” can find information about the
status of motor vehicles, Maryland Credit Fin. Corp. v. Franklin Credit Fin. Corp., 164 Va. 579,
583, 180 S.E. 408, 409-10 (1935).
The absence of recordation has no effect on the legal rights and liabilities solely between
the original parties to the sale. See Staunton Indus. Loan Corp. v. Wilson, 190 F.2d 706, 708
(4th Cir. 1951) (explaining the recordation statutes were “not intended to invalidate unrecorded
transactions in motor vehicles” between immediate parties (citation omitted)); accord Travelers
Indem. Co. v. Nationwide Mut. Ins. Co., 227 F. Supp. 958, 963-64 (W.D. Va 1964) (because
Virginia’s motor vehicle titling statutes serve a “recording or notice function,” compliance with
the transfer of title between parties relaxes when “no third persons are involved”).
C. GRAND LARCENY OF THE BOAT AND TRAILER
Wilson also argues on appeal the evidence was insufficient to prove she stole either the
boat or the trailer. Alleging she was the “titled owner” of both, Wilson contends it was
“impossible for her to steal from herself.” Appellant’s Br. at 10. Because the evidence clearly
refutes this assertion with respect to the boat, we need not address the boat trailer.4
4
The grand larceny indictment against Wilson alleged generally she stole “property”
having a value of $200 or more. App. at 3. The jury instructions directed the jury to find her
guilty if she stole the boat “and/or” the trailer. Trial Tr. at 196; R. at 180. The jury’s general
-7-
“In Virginia, larceny is a common law crime.” McEachern v. Commonwealth, 52
Va. App. 679, 684, 667 S.E.2d 343, 345 (2008) (citation omitted). Larcenous intent “may, and
often must, be inferred from that person’s conduct and statements.” Id. (citations omitted). “To
be sure, ‘there is not one case in a hundred where the felonious intent in the original taking can
be proved by direct evidence. From the nature of the case, intent, generally, must be inferred
from circumstances.’” Id. (quoting Skeeter v. Commonwealth, 217 Va. 722, 726, 232 S.E.2d
756, 759 (1977)). Absent countervailing evidence of an intention otherwise, “the wrongful
taking of the property in itself imports the animus furandi.” Id. at 685, 667 S.E.2d at 346
(citation omitted). “In other words, the very existence of a trespassory taking permits the
inference (unless other circumstances negate it) that the taker intended to steal the property.” Id.
(citation omitted).
Having established that Wilson had no ownership interest, the evidence amply supports
the conclusion that she committed grand larceny of the boat. The property settlement agreement
and divorce decree vested Jones with “sole use, possession, and enjoyment of said items as of the
date of the execution of this agreement . . . .” App. at 138. Wilson later executed, as “seller,” a
document of title to the boat and delivered it to the secretary of Jones’s legal counsel. Id. at 44,
165. She did not assert at that time any claim of ownership in the boat. Jones maintained
possession of the boat until his death.
These facts negate Wilson’s alleged ownership interest in the boat. See generally Allstate
Ins. Co. v. Atlanta Cas. Co., 260 Va. 148, 154-55, 530 S.E.2d 161, 165 (2000); Nationwide Ins.
Co. v. Storm, 200 Va. 526, 528-29, 106 S.E.2d 588, 589-90 (1959). Wilson’s successful attempt,
verdict did not distinguish between the two. Because Wilson stipulated the value of either
exceeded $200, see supra n.1, we will limit our analysis to the sufficiency of the evidence
regarding the larceny of the boat.
-8-
just weeks after Jones’s death, to manipulate DGIF into issuing a new title to her and her new
husband (claiming the original document was lost) only strengthens the incriminating evidence
of her larcenous intent. For these reasons, the jury had ample evidence to convict Wilson of
grand larceny.
On appeal, Wilson raises a claim-of-right defense contending she reasonably believed she
could take the boat in response to Jones’s alleged failure to make a payment under the property
settlement agreement. See generally Groves v. Commonwealth, 50 Va. App. 57, 63, 646 S.E.2d
28, 31 (2007) (recognizing that a sincere “good faith” claim of right, but not a “dishonest
pretense,” could permit the factfinder to conclude larcenous intent did not exist). We will not
address this defense, however, because Wilson expressly abandoned it in the trial court. See
App. at 119, 121; supra at 3-4 n.1. “Under settled principles, a criminal defendant cannot
‘approbate and reprobate by taking successive positions in the course of litigation that are either
inconsistent with each other or mutually contradictory.’” Alford v. Commonwealth, 56 Va. App.
706, 709, 696 S.E.2d 266, 267 (2010) (citation omitted).
III.
Because sufficient evidence supports Wilson’s convictions for unlawfully obtaining
documents from DMV and grand larceny, we affirm.
Affirmed.
-9-
Susan A. Wilson, a/k/a Susan A. Jones v. Commonwealth of Virginia
Combined Opinion