COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia
WAYNE R. McDOWELL, II, S/K/A
RODERICK McDOWELL
OPINION BY
v. Record No. 0200-10-2 JUDGE ROBERT P. FRANK
NOVEMBER 23, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
J. Lloyd Snook, III (Snook & Haughey, P.C., on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Wayne R. McDowell, II, s/k/a Roderick McDowell, appellant, was convicted, in a bench
trial, of fraudulent conversion of leased property, in violation of Code § 18.2-118. On appeal, he
challenges the sufficiency of the evidence, specifically that the notice requirements of Code
§ 18.2-118(b) had not been met. For the reasons stated, we affirm.
BACKGROUND
On August 10, 2006, appellant signed a lease purchase agreement with Premier Rental
Purchase (Premier) for a television set valued at $1,499. The agreement provided for a lease term of
thirty-six months, yet appellant made payments for only five or six months. The agreement listed
appellant’s address as 1800 Jefferson Park Avenue.
The agreement provided, inter alia:
TITLE and TERM: You (Lessee) are renting the rental property
described above. You may use and possess the property so long as
you make timely renewal rental payments and fully comply with
all the terms of this agreement. Timely payments are rental
payments made in advance with no grace period. We (Lessor) own
the title to the property and are entitled to possession of the
property when this agreement is terminated.
You (Lessee) have no ownership rights to the property unless you
fully comply with all the terms of this agreement. Once the total
number of payments have [sic] been made to fulfill the terms of
this agreement, title will be transferred to Lessee.
OWNERS RIGHT TO PROPERTY: The owner and its agents,
upon the termination of this agreement are specifically authorized
to take possession of the rented property.
TERMINATION: By Us: We may terminate this agreement at
any time if you violate the conditions or terms of this agreement.
AUTOMATIC EXPIRATION: This agreement will automatically
expire upon your failure to make the renewal rental payment date
shown by the Next Due Date on the receipt which is hereby
incorporated by reference.
LOCATION OF PROPERTY: You agree to keep the rental
property at the address listed above during the term of this
agreement. If you move the property without written permission,
this agreement will be terminated.
In January 2007, John Pitts, manager of accounts at Premier, contacted appellant
concerning a delinquent payment. Pitts met appellant at appellant’s apartment at 1800 Jefferson
Park Avenue, Apartment B-37, in Charlottesville, Virginia. Appellant agreed to bring his
account current and did so. Appellant soon fell behind in his payments. Pitts attempted to
contact appellant by telephone, but determined that appellant’s telephone number was no longer
in service. Pitts then went to the same Jefferson Park Avenue address but found no one there.
On the first few visits to the apartment, Pitts noticed furniture inside. On later visits, Pitts could
no longer see any furniture. As nobody answered his knocking, Pitts left notes asking for a
response, but received none.
On May 1, 2007, Premier sent a certified letter to 1800 Jefferson Park Avenue,
Apartment B-37, Charlottesville, Virginia. The letter, styled “Final Notice,” advised appellant
that because of past due payments, his account had been terminated. The letter further advised
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appellant that his failure to return the television within ten days might result in prosecution
pursuant to Code § 18.2-118. The certified letter was returned to Premier undelivered because
the premises were “vacant.” 1
At trial, appellant moved to strike the Commonwealth’s evidence because the notice
letter, which was mailed to 1800 Jefferson Park Avenue, Apartment B-37, Charlottesville,
Virginia, was not the address listed on the agreement, i.e., 1800 Jefferson Park Avenue.
Appellant reasoned that this was not in compliance with Code § 18.2-118 and, therefore, the
Commonwealth did not prove an intent to defraud.
The trial court rejected that argument, concluding the Commonwealth had complied with
the notice provisions of Code § 18.2-118. Finding no evidence to rebut the Commonwealth’s
prima facie case, the trial court convicted appellant of violating the statute.
At sentencing, appellant was also tried for a probation violation. The Commonwealth’s
Attorney argued that appellant committed two robbery offenses and murder while he was on
probation. Without any reference to the failure to return the television, the Commonwealth
asked that all of the previously suspended time be imposed. The court revoked the previously
suspended sentence.
This appeal follows.
ANALYSIS
On appeal, appellant contends the notice sent by certified mail to appellant at 1800
Jefferson Park Avenue, Apartment B-37, Charlottesville, Virginia, did not comply with Code
§ 18.2-118 in two significant ways: (1) The notice was not mailed to appellant “at the address of
lessee stated in the lease . . .”; and (2) the notice did not advise appellant “that the lease or rental
1
It was stipulated that the defendant was in custody from April 27, 2007, until the time of
trial.
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period . . . ha[d] expired.” Appellant, on brief, concedes the second argument was not preserved
below but invokes the Rule 5A:18 “ends of justice” exception. Thus, appellant concludes that
since the Commonwealth did not satisfy the notice requirements of Code § 18.2-118(b), it did
not have the benefit of the prima facie showing of the requisite “intent to defraud” and there was
no other evidence of such an intent. 2
Therefore, the issue before this Court is whether the notice sent by Premier satisfies the
written notice requirements of Code § 18.2-118(b). 3 Appellant does not argue 1800 Jefferson
Park Avenue, Apartment B-37, Charlottesville, Virginia, is an inaccurate address. His sole
2
Code § 18.2-118 states in relevant part:
(a) Whenever any person is in possession or control of any
personal property, by virtue of or subject to a written lease of such
property, except property described in § 18.2-117, and such person
so in possession or control shall, with intent to defraud, sell,
secrete, or destroy the property, or dispose of the property for his
own use, or fraudulently remove the same from the
Commonwealth without the written consent of the lessor thereof,
or fail to return such property to the lessor thereof within ten days
after expiration of the lease or rental period for such property
stated in such written lease, he shall be deemed guilty of the
larceny thereof.
(b) The fact that such person signs the lease or rental agreement
with a name other than his own, or fails to return such property to
the lessor thereof within ten days after the giving of written notice
to such person that the lease or rental period for such property has
expired, shall be prima facie evidence of intent to defraud. For
purposes of this section, notice mailed by certified mail and
addressed to such person at the address of the lessee stated in the
lease, shall be sufficient giving of written notice under this section.
3
In his brief, appellant also argues there was no evidence appellant sold, secreted or
destroyed the leased television set. We will not address this issue because the issue was not
presented to this Court as an assignment of error. Rule 5A:20(c) mandates that these issues are
waived, because they are not part of appellant’s assignments of error. See Winston v.
Commonwealth, 51 Va. App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding that because an
appellant did not include an argument in his questions presented (now assignments of error), the
Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35
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argument is that by adding “Apartment B-37, Charlottesville, Virginia” to the address, the notice
provision has not been satisfied and therefore the Commonwealth is not entitled to the prima
facie showing of “intent to defraud.”
Appellant compares the notice requirement of Code § 18.2-118 to Code § 18.2-200.1, the
construction fraud statute, which provides in part that one is guilty of larceny “if [the contractor]
fails to return such advance within fifteen days of a request to do so sent by certified mail, return
receipt requested to his last known address or to the address listed on the contract.”
Appellant cites Jimenez v. Commonwealth, 241 Va. 244, 402 S.E.2d 678 (1991), to
support his argument. In Jimenez, the Commonwealth did not prove the accused was sent a
written notice or that he failed to return the advance within fifteen days of such demand. Id. at
247, 402 S.E.2d at 679. The Supreme Court of Virginia concluded:
A criminal statute, such as Code § 18.2-200.1, must be strictly
construed. We think it clear that the General Assembly meant
what it said, i.e., that a person accused of violating the statute
cannot be convicted unless the evidence proves beyond a
reasonable doubt, inter alia, that the accused “fail[ed] to return
[the] advance within fifteen days of a request to do so,” and that
the request was “sent by certified mail, return receipt requested.”
Id. at 251, 402 S.E.2d at 681.
Appellant concludes that when a statute specifies a method for giving notice, the method
must be strictly followed. We agree with that statement, but it does not resolve the issue before
us.
[T]his Court reviews the trial court’s [interpretation of a statute] de
novo. The basic rules of statutory construction require this Court
to determine intent from the words used in the statutes at issue.
“Although penal laws are to be construed strictly [against the
Commonwealth], they ought not to be construed so strictly as to
defeat the obvious intent of the legislature.” Carter v.
Commonwealth, 38 Va. App. 116, 125, 562 S.E.2d 331, 335
Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (declining to consider an issue on appeal
because it was not “expressly stated” in the questions presented).
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(2002) (alteration in Carter) (quoting Willis v. Commonwealth, 10
Va. App. 430, 441, 393 S.E.2d 405, 411 (1990)). “‘[A] statute
should never be construed so that it leads to absurd results.’” Id.
(quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419
S.E.2d 422, 424 (1992)).
Herron v. Commonwealth, 55 Va. App. 691, 697, 688 S.E.2d 901, 904 (2010) (other citations
omitted).
The plain language of the statute creates a method for the lessee to be made aware that
the lease has expired and that he can avoid criminal prosecution by returning the property within
ten days. A lessee’s failure to do so gives rise to a prima facie showing of “intent to defraud.”
Notice must be mailed by certified mail and addressed to lessee at the address stated in the lease.
Appellant argues that there was additional information in the address, namely, an
apartment number and the city. 4 He cites no cases, nor can we find any, which invalidate a
notice because the mailing address added an apartment number that more accurately reflected
appellant’s correct address.
Indeed, the notice was mailed to 1800 Jefferson Park Avenue, the address stated in the
lease agreement. Appellant, in his brief, conceded 1800 Jefferson Park Avenue was an
apartment complex and it is likely that there were at least seventy-four units in the building. The
addition of the apartment number and city heightened the likelihood that appellant would receive
the notice. While receipt of notice is not required under the statute, actual receipt of the notice
may result in the return of the leased property, certainly a preferred alternative to a criminal
charge.
4
To the extent that appellant argues Apartment B-37 was not the correct address, we note
that the “Customer Order Form” executed simultaneously with the lease agreement shows
appellant’s address to be 1800 Jefferson Park Avenue, Apartment B-37, Charlottesville, Virginia,
22906.
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We conclude that adding the apartment number and city to the address stated in the lease
agreement did not violate the notice requirements of Code § 18.2-118. The address on the notice
omitted nothing, but contained more accurate information. Nothing in the address would
misdirect the delivery of the notice. See McCary v. Commonwealth, 42 Va. App. 119, 131, 590
S.E.2d 110, 116 (2003) (finding that when notice was mailed to the correct address but a wrong
zip code, absent a showing that a similar address at the incorrect zip code existed, the notice was
proper). To accept appellant’s argument that adding a more specific designation to a correct
address violates the statute defies common sense. We will not interpret a statute so as to lead to
an absurd result. Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007). This
analysis is not inconsistent with the strict rules of statutory construction. We simply find that
providing a more precise address does not violate the statute. Therefore, the Commonwealth was
entitled to the prima facie showing of “fraudulent intent.”
Appellant next argues the notice did not advise him that the lease or rental period had
expired. He points to the language in the May 1, 2007 “Final Notice” which advised appellant
that his account had been terminated. Appellant acknowledges he did not raise this issue below
but maintains the “ends of justice” exception to Rule 5A:18 should apply. He posits that the
evidence clearly shows that an element of the offense, fraudulent intent, had not been proven
because the Commonwealth was not entitled to the prima facie showing. He cites no authority
for his “ends of justice” argument; he simply makes the assertion.
When the appeal was filed, Rule 5A:18 5 provided that “[n]o ruling of the trial court . . .
will be considered as a basis for reversal unless the objection was stated together with the
5
Effective July 1, 2010, Rule 5A:18 now provides in part:
No ruling of the trial court or the Virginia Workers’ Compensation
Commission will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the
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grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.” “The ends of justice exception to Rule 5A:18 is narrow
and is to be used sparingly.” Copeland v. Commonwealth, 42 Va. App. 424, 442, 592 S.E.2d
391, 399 (2004). “In order for the exception to apply, ‘[t]he record ‘must affirmatively show that
a miscarriage of justice has occurred, not that a miscarriage might have occurred.’” Akers v.
Commonwealth, 31 Va. App. 521, 528 n.2, 525 S.E.2d 13, 16 n.2 (2000) (quoting Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)).
The “appellant must demonstrate that he or she was convicted for conduct that was not a
criminal offense or the record must affirmatively prove that an element of the offense did not
occur.” Redman, 25 Va. App. at 222, 487 S.E.2d at 273. “Therefore, ‘in examining a case for
miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual
standard, but instead determine whether the record contains affirmative evidence of innocence or
lack of a criminal offense.’” Wheeler v. Commonwealth, 44 Va. App. 689, 692, 607 S.E.2d 133,
135 (2005) (quoting Lewis v. Commonwealth, 43 Va. App. 126, 134, 596 S.E.2d 542, 546
(2004)).
Appellant does not claim failure to return leased property is not a criminal offense. Thus,
for the ends of justice exception to apply, the record must contain evidence affirmatively proving
that appellant had no intent to defraud. However, this is not appellant’s theory of “ends of
justice.” Appellant contends the Commonwealth failed to prove this element. “In order to show
that a miscarriage of justice has occurred, an appellant must demonstrate more than that the
Commonwealth failed to prove an element of the offense.” Redman, 25 Va. App. at 221, 487
S.E.2d at 272-73 (emphasis in original). The evidence clearly indicates appellant leased the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice.
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television set, did not pay for it, failed to return it nor did he contact Premier to explain his
failures.
Here, even if the prima facie showing of “fraudulent intent” is unavailable to the
Commonwealth, there is no affirmative proof that such intent was lacking. We therefore will not
consider this contention.
Finally, appellant challenges the revocation of a prior suspended sentence because of his
contention that his conviction under Code § 18.2-118 was improper. This issue was not raised in
appellant’s petition for appeal nor was it an assignment of error.
This issue is barred under Rule 5A:12(c) which at the time the petition was filed,
provided that “only questions presented in the petition for appeal will be noticed by the Court of
Appeals.” “Only those arguments presented in the petition for appeal and granted by this Court
will be considered on appeal.” McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d
717, 720 (1999) (en banc). Further, unlike Rule 5A:18, Rule 5A:12 contains no “good cause” or
“ends of justice” exception. See Thompson v. Commonwealth, 27 Va. App. 620, 626, 500
S.E.2d 823, 826 (1998).
CONCLUSION
For the foregoing reasons, we find that the trial court properly found that the
Commonwealth had complied with the notice provisions of Code § 18.2-118 and the evidence
was sufficient to find appellant guilty. We further conclude that the ends of justice provision of
Rule 5A:18 does not apply to appellant’s failure to preserve the issue of whether appellant was
served with an adequate notice that his lease had expired. Accordingly, the appellant’s
conviction is affirmed.
Affirmed.
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