Jewel v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia

GARY E. JEWEL
OPINION BY
v. Record No. 2899-97-4 JUDGE CHARLES H. DUFF
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge

Thomas D. Logie (Elwood Sanders, Jr.; Office
of the Public Defender; Public Defender
Commission, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Gary E. Jewel, appellant, appeals his conviction for two

counts of grand larceny by false pretenses. He argues the trial

court erred by allowing the Commonwealth to impeach him by using

a prior conviction order, which indicated that he entered guilty

pleas to two charges but did not contain the trial court's

findings of guilt or its imposition of a sentence. He also

contends the trial court erred in refusing to give his proffered

jury instruction concerning the elements of larceny by false

pretenses. Finding no error, we affirm the convictions.
 FACTS

The evidence proved that appellant was the owner and

president of a business called Quick Strike, Inc. ("Quick

Strike"). Appellant approached Robert E. Clayton, a certified

public accountant, for a loan concerning this business.

Appellant represented to Clayton that he had several contracts

for work but needed money to rent equipment to perform the work

for these contracts. Appellant stated that he did not have time

to obtain financing through traditional loans and asked Clayton

if he knew anyone who could provide him a loan for one to two

months at an interest rate of 10% per month.

Appellant showed Clayton several "signed, executed

contracts" for which the customers were allegedly waiting for

appellant to begin work. Clayton reviewed the price breakdown

on the contracts and determined that appellant had calculated a

sufficient profit margin in the contracts in order to pay the

high interest rate on the loan.

One of the contracts appellant showed Clayton was signed by

a "Peter Rebull" of Rebull and Associates. Appellant also gave

Clayton a letter from Rebull which purported to represent

Rebull's authorization to use Clayton as manager of the accounts

receivables and accounts payable for the contract. Clayton then

loaned appellant $8,000.

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 Appellant later requested another loan from Clayton and

provided Clayton with a copy of a contract signed by a "Robert

Barnhardt," with Associated Environmental Services, Inc., for

work to be performed for their client, Martin Marietta

Corporation ("Martin Marietta"). Appellant asked Clayton for

$20,000 to use to rent equipment in order to start the contract.

Appellant also provided Clayton with a letter purporting to

represent Martin Marietta's authorization to use Clayton as

manager of the accounts receivable and the accounts payable for

the contract.

Appellant showed Clayton an invoice to Peter Rebull in the

amount of $31,834 for work performed on that contract and asked

Clayton to mail the invoice to Rebull. Clayton called the

telephone number provided by appellant for Peter Rebull and

spoke with someone claiming to be Rebull. This person assured

Clayton that the $31,834 would be paid within sixty days.

Clayton then made a second loan to appellant for $20,000.

Clayton deposited a $20,000 cashier's check in Quick Strike's

bank account. The cashier's check contained the following

notation, "Re: Robert E. Clayton Martin Marietta Loan."

Clayton testified that he "absolutely" would not have made

the two loans to appellant if appellant had not provided him

with copies of the two executed contracts.

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 Clayton stated that he became concerned when payment on the

first loan became overdue. Appellant told Clayton that he would

have Rebull call him, and Clayton received a recorded telephone

message from someone claiming to be Rebull. The man said he

would pay Clayton when appellant completed certain tasks at the

job site. Clayton saved the recorded message and played the

tape recording for appellant's answering service employee. The

answering service employee testified that the voice on the tape

was the voice of appellant's son. She also identified the

telephone number that appellant gave Clayton for Peter Rebull as

appellant's cellular telephone number. She stated that, on

several occasions, she had called appellant's cellular phone

number, and someone answered indicating that he was Peter

Rebull. The Commonwealth presented evidence that the address

appellant gave Clayton for Peter Rebull was a fraudulent

address.

Clayton eventually confronted appellant about his inability

to reach Rebull at the telephone number and address provided by

appellant. Appellant told Clayton that the information he gave

Clayton was a "clerical error" and "an oversight." Appellant

said he was not sure why he gave Clayton that telephone number

and address. Clayton testified that, eventually, appellant

admitted to him that he "lied" about the loans.

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 Robert Barnhardt, of Associated Environmental Services,

testified that he never entered into a contract with Quick

Strike. Barnhardt stated that he sent a request to appellant's

company for a quotation for a job but appellant's company was

not chosen to perform the work. Barnhardt testified that the

request would have contained his signature.

At the trial, appellant admitted that he provided the two

"contracts" to Clayton but testified that the Rebull contract

was meant to be a "sample" or "example of a medium sized

contract" for his company. He also testified that the Martin

Marietta contract was a "hypothetical" contract intended to show

"the size of the job that Quick Strike . . . could handle."

Appellant admitted that he placed Barnhardt's signature on the

Martin Marietta contract because "[i]t was a bogus sample

contract." Clayton testified that appellant did not give him

any documents that appellant described as a "sample" contract.

ANALYSIS

I. Impeachment Evidence

Prior to the start of the trial, appellant filed a motion

in limine requesting that the trial court refuse to allow into

evidence appellant's prior felony convictions from Loudoun

County. Although appellant pled guilty to the charges, he

argues that the trial court erred in allowing the Commonwealth

to use these convictions as impeachment evidence because the

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order from the Loudoun County Circuit Court does not indicate

that the trial court found appellant guilty of the charges and

because the order does not contain sentencing information.

Appellant further asserts that the guilty pleas were not

supported by the evidence.

The May 21, 1997 Loudoun County Circuit Court order

indicates that appellant entered guilty pleas to two felonies,

and the trial court accepted the pleas. The order indicates

that appellant entered into a plea agreement in the case, and

the Commonwealth presented "stipulated evidence" regarding the

charges. The order further states that appellant presented no

evidence on his behalf. The trial court accepted appellant's

guilty pleas as to two counts, ordered the preparation of a

presentence report, and set a sentencing date.

In Fields v. Commonwealth, 5 Va. App. 229, 234, 361 S.E.2d

359, 362 (1987), a witness had entered voluntary guilty pleas to

two felonies, which were accepted by the trial court. However,

at the time the witness testified in another trial, the court

had not imposed its sentences for the prior convictions. Id. at

233, 361 S.E.2d at 361. Relying on the rationale in Lincoln v.

Commonwealth, 217 Va. 370, 228 S.E.2d 688 (1976), we held that

"for purposes of impeachment, [the witness] had the status of a

convicted felon when he testified . . . ." Fields, 5 Va. App.

at 234, 361 S.E.2d at 362.

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 In Lincoln, the issue was whether the trial court erred in

refusing to give a jury instruction regarding the credibility of

convicted felons. Two accomplices in a robbery testified

against the defendant. In describing the facts of the case, the

Court stated that the witnesses had "previously entered guilty

pleas and stood convicted, but not sentenced, for participating

in the robbery." Lincoln, 217 Va. at 371, 228 S.E.2d at 689

(emphasis added). Although the Court found that the instruction

was supported by the evidence, it was not reversible error to

refuse it because the point was covered by other instructions.

See id. at 375, 228 S.E.2d at 692.

In Dowell v. Commonwealth, 12 Va. App. 1145, 1147-48, 408

S.E.2d 263, 265 (1991), aff'd on reh'g en banc, 14 Va. App. 58,

414 S.E.2d 440 (1992), we emphasized that the circumstances in

Fields, where the witness had entered a voluntary guilty plea,

were distinguishable from a case where a witness had pled not

guilty, had been convicted by a jury but had not yet been

sentenced. We stated that, because a judge could set aside a

jury verdict, "[t]he availability of such a remedy detracts from

the finality of the jury's verdict and consequently the

reliability of such a verdict for impeachment purposes." Id. at

1149, 408 S.E.2d at 265. Thus, the holding in Dowell did not

limit the Fields decision.

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 Appellant contends the May 21, 1997 order is "quite clear"

that, when the guilty pleas were accepted, the trial court made

"no finding of guilt." However, the order indicates that the

court accepted the pleas. "'[A] voluntary and intelligent plea

of guilty by an accused is, in reality, a self-supplied

conviction authorizing imposition of the punishment fixed by

law.'" Id. at 1148, 408 S.E.2d at 265 (citation omitted)

(emphasis added). "'A plea of guilty that is voluntarily and

intelligently made by an accused is a conviction and nothing is

left but the imposition of the prescribed punishment.'" Id.

(citation omitted). Therefore, appellant's argument is without

merit.

Appellant also cites several cases that do not address the

instant issue but address the use of prior convictions for other

purposes. See McBride v. Commonwealth, 24 Va. App. 30, 480

S.E.2d 126 (1997) (involving what constitutes a prior conviction

for a second offense DUI conviction); Bellinger v. Commonwealth,

23 Va. App. 471, 477 S.E.2d 779 (1996) (involving what

constitutes "records of conviction" for admission of prior

criminal convictions into evidence at the sentencing phase).

These cases did not involve the impeachment of a defendant by a

showing of prior convictions, and the rules regarding

impeachment did not apply in these cases. See 1 Charles E.

Friend, The Law of Evidence in Virginia 109 (1993) ("It is

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extremely important that the rules regarding the impeachment of

an accused by a showing of prior convictions be kept distinct

from other rules which permit the showing of prior criminal

activity by an accused."). Therefore, the cases are inapposite.

Appellant also contends Code § 19.2-307 requires that the

order of conviction must contain a finding of guilt by the trial

judge. The order in appellant's case does not include some of

the elements listed in Code § 19.2-307, which is entitled

"Contents of judgment order." The order in appellant's case

does not contain a statement as to whether the case was tried by

jury, whether the Commonwealth and the court concurred in the

waiver of a jury trial, or the sentence. The order does not

contain a "verdict or findings and the adjudication and

sentence." Code § 19.2-307. However, Code § 19.2-307 addresses

sentencing orders and is located in that part of the Code that

discusses sentence, judgment, and execution of sentence. The

order in appellant's case specifically ordered the preparation

of a presentence report and scheduled a future date for

sentencing. Thus, it was not the final sentencing order for the

matter. However, the document is a formal court order, signed

by a judge, setting forth appellant's guilty pleas, stating that

the Commonwealth and appellant entered into a plea agreement

concerning the charges, and stating the acceptance of the guilty

pleas by the judge. Furthermore, the Commonwealth did not seek

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to use the document in the sentencing phase of appellant's trial

in accordance with Code § 19.2-295.1.

Moreover, Code § 19.2-283, entitled, "How accused may be

convicted of felony," states, in pertinent part, that "[n]o

person shall be convicted of a felony, unless . . . by his

plea . . . accepted and recorded by the court . . . ." The

order clearly states that the trial court accepted appellant's

guilty pleas. Therefore, we find that, "for purposes of

impeachment, [appellant] had the status of a convicted felon

when he testified." Fields, 5 Va. App. at 234, 361 S.E.2d at

362.

Appellant also contends that constitutional principles

dictate a different result where the person to be impeached is

the defendant as opposed to a mere witness. However, none of

the United States Supreme Court cases cited by appellant

addresses the issue of the use of a prior conviction to impeach

either a witness or a defendant. Furthermore, none of the cases

cited by appellant addresses whether different rules apply for

the impeachment of a defendant as opposed to a witness.

Code § 19.2-269 provides: "A person convicted of a felony

or perjury shall not be incompetent to testify, but the fact of

conviction may be shown in evidence to affect his credit." The

Virginia Supreme Court has interpreted the former version of the

statute as follows:

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 The statute permits the examination of
a defendant as to any prior felony
convictions, should he become a witness in
his own behalf. The sole purpose of such
inquiry is to attack the defendant's
credibility as a witness. His answer is not
to be considered as evidence of his guilt or
innocence of the crime charged, and the jury
is usually so instructed.
We construe the statute to mean that
the fact of conviction of a felony may be
shown by the Commonwealth, but the name of
the felony, other than perjury, and the
details thereof may not be shown. We are
not unaware that some prejudice rises
against a defendant when it is disclosed
that he has been convicted of a felony, but
its probative value as to his credit
outweighs the prejudicial effect.

Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51

(1971). Thus, the Court interpreted the statute to allow the

impeachment of defendants and other witnesses by this method.

The trial transcript indicates that the Commonwealth's

Attorney asked appellant, "[I]t is true, is it not, that you

have two prior felonies at this point?" Appellant replied,

"Yes, Sir, I do." Nothing further was said about the

convictions. Thus, the Commonwealth's use of the evidence

complied with Harmon. Accordingly, the trial court did not err

in allowing the Commonwealth to impeach appellant by using the

evidence of his prior convictions.

II. Jury Instruction

Appellant argues that the trial court erred in granting Jury

Instruction No. 7 concerning the elements of larceny by false

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pretenses. He also argues that the trial court erred in refusing

to give his proffered Jury Instruction A regarding the elements of

the offense.

Appellant first argues that the granted instruction failed to

inform the jury that one of the elements of the offense was that

appellant intended to permanently deprive the owner of his

property at the time the money was advanced. Thus, appellant

argues, the granted instruction misled the jury to believe that

appellant's initial receipt of the money satisfied the requirement

of proof that an actual fraud was committed. Appellant contends

that the requirement of actual fraud includes the larceny element

of intent to permanently deprive the owner of his property.

The elements of larceny by false pretenses are:

"'(1) an 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.'"

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

(1977) (citation omitted). Thus, there is no requirement that the

owner must be permanently deprived of the property.

The granted instruction stated, in pertinent part:

The defendant is charged with the crime
of larceny by obtaining property by false
pretenses. The Commonwealth must prove
beyond a reasonable doubt each of the
following elements of that crime:

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 1. That the defendant knowingly and
intentionally made a false representation of
a past event or an existing fact; and
2. That when the representation was
made, the defendant had an intent to defraud
the owner or possessor by causing him to
part with the possession of and title to his
property; and
3. That because of the false
representation, the owner or possessor
parted with the possession of and title to
his property; and
4. That the property taken was worth
$200.00 or more.

Nothing in the wording of the granted instruction indicates that

"the receipt of the funds is itself the fraud," regardless of

appellant's intent. Moreover,

[t]he gravamen of the offense, . . . is the
obtainment of ownership of property, by
false representations or pretenses. But
there is no requirement that the intended
victim suffer actual pecuniary loss.
Ultimate financial gain or loss to the
victim is immaterial.
The crime is complete when the fraud
intended is consummated by obtaining the
property sought by means of the false
representations, and the offense is not
purged by ultimate restoration or payment to
the victim. It is sufficient if the fraud
of the accused has put the victim in such a
position that he may eventually suffer loss.

Quidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622,

624-25 (1981). Therefore, "the crimes [were] complete" when

Clayton surrendered money to appellant, in reliance upon

appellant’s false representations that he had contracts with the

two companies. Thus, the granted instruction properly

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instructed the jury on these elements of the offense.

Accordingly, appellant's arguments are without merit.

Appellant also contends the granted instruction "misl[ed]

the jury into believing that evidence of nonpayment is

sufficient evidence of intent to defraud . . . ." He further

argues that the granted instruction "eliminate[d] the need of

the Commonwealth to prove . . . that [appellant] must have had

the intent to defraud at the time he received the loans" and

permitted the jury to find intent to defraud from "the mere fact

of nonpayment."

However, the jury was clearly instructed in the second

element of the granted instruction that the Commonwealth had to

prove that appellant had an intent to defraud when the

representations were made. Nothing in the language of the

instruction directed the jury to find the intent to defraud from

appellant's failure to recompense Clayton for the "loans."

Indeed, the granted instruction made no reference to repayment,

nonpayment, or the intent to repay Clayton.

Furthermore, the granted instruction complied with the

holding in Lewis v. Commonwealth, 28 Va. App. 164, 172, 503

S.E.2d 222, 226 (1998). In Lewis, we stated: "the jury should

have been instructed that the intent to defraud must have

existed at the time the false representations were made . . . ."

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 "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)). Jury Instruction No. 7

clearly stated the elements of larceny by false pretenses and

covered issues raised by the evidence. Moreover, the

instruction was not misleading concerning the intent to defraud

element. Therefore, the trial court did not err in granting

Jury Instruction No. 7.

For these reasons, we affirm the convictions.

Affirmed.

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