COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
DARRELL S. LEWIS, S/K/A
DARRELL SCOTT LEWIS
OPINION BY
v. Record No. 1445-97-4 JUDGE CHARLES H. DUFF
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Cynthia A. Bailey (Peter D. Greenspun &
Associates, P.C., on briefs), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Darrell Scott Lewis (appellant) appeals his conviction for
obtaining property by false pretenses in violation of Code
§ 18.2-178. Appellant contends the trial court erred by (1)
denying his motion to strike the evidence because the
Commonwealth failed to prove that valid title to the vehicle
passed to appellant; and (2) concluding that temporary title to
the vehicle was sufficient to prove that title to the vehicle
passed to appellant. Appellant also contends the trial court
erred in refusing to grant various proffered jury instructions.
Finding that the court erred in refusing to instruct the jury
fully regarding the elements of the offense, we reverse the
conviction.
I. Facts
Appellant negotiated for the purchase of a Sir Speedy
printing franchise in March 1996, but the sale was never
completed. Mary Clemons, the owner of the Sir Speedy franchise
that appellant attempted to buy, testified that "by the end of
March" she knew the deal was not going to be completed.
On April 3, 1996, appellant met with Norrice Tucker, the
finance manager for Brown's Mazda, an automobile dealership.
Appellant told Tucker he was the president of a Sir Speedy
printing franchise, that he owned the franchise, that the
franchise was going to buy a truck for the company, and that the
franchise would pay cash for the truck. Appellant told Tucker he
would fax the buyer's order for the truck to the franchise and
that the franchise would provide him with a cashier's check,
which appellant would deliver to the dealership. Tucker
testified that appellant "filled out the buyer's order, the
promissory note, the credit application, the title and
registration form, and the temporary tag form for his thirty-day
tags." Tucker also stated that appellant signed "the title form;
registration for the title for the permanent tags."
Tucker did not run a credit report, check appellant's tax
identification number, call the State Corporation Commission, or
call any vendor credit references concerning appellant's
representation that he owned the franchise. Tucker testified
that he relied on appellant's representation that he was the
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president and owner of the company.
After completing the paperwork, appellant received the keys
to the truck. Tucker testified that, at that point, appellant
owned the truck. Tucker stated that appellant said he would pay
for the truck within about three days, as soon as he could fax
the information to his parent company and they could "overnight"
the money to him. The promissory note indicates that appellant
was to pay the full purchase price of the truck by April 5, 1996.
The dealership never received any payment from appellant.
On May 8, 1996, the police recovered the truck at appellant's
residence, and appellant was later convicted of obtaining
property by false pretenses.
II. Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to prove
he committed larceny by false pretenses because he obtained only
temporary title to the truck and did not obtain actual title to,
or ownership of, the truck. Appellant also contends the
dealership remained the owner of the truck at all times based on
the fact that several documents completed by appellant specified
that the dealership retained the right to repossess the truck in
the event appellant failed to pay for the vehicle.
"'An essential element of larceny by false pretenses is that
both title to and possession of property must pass from the
victim to the defendant (or his nominee).' 'The gravamen of the
offense . . . is the obtainment of ownership of property
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. . . .'" Baker v. Commonwealth, 225 Va. 192, 194, 300 S.E.2d
788, 789 (1983) (citations omitted).
This case presents an issue of first impression in Virginia.
However, other jurisdictions have sustained convictions for
theft by false pretenses when the thief took property under a
conditional sales contract, and the victim retained legal title
to secure the unpaid balance of the purchase price. See Whitmore
v. State, 298 N.W. 194 (Wis. 1941); People v. Aiken, 34 Cal.
Rptr. 828 (Cal. Dist. Ct. App. 1963); Franklin v. State, 214 So.
2d 924 (Ala. Ct. App. 1968).
In Whitmore, the court held:
Where . . . goods are sold under a
conditional sales contract and the legal
title is merely retained for purposes of
security, the vendee gets a sufficient
property interest to support a conviction of
obtaining money by false pretenses provided
the other requisites of the offense are
present. As pointed out in Chappell v.
State, 25 N.E.2d 999 [(Ind. 1940)], the
doctrine that one must obtain title and
possession in order to be guilty of the crime
of false pretenses cannot mean an absolute
title because any title obtained by fraud is
voidable and the requirement would make it
impossible for the crime to be consummated.
Whitmore, 298 N.W. at 195. See also Aiken, 34 Cal. Rptr. at 831
("Our attention has not been called to any authority requiring
that in order to support a conviction for theft by false
pretenses the title acquired by the fraud be perfect or
complete.").
In Franklin, the Alabama Court of Appeals upheld a
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conviction for obtaining property by false pretenses where the
defendant purchased a car upon signing a conditional sales
contract and by trading in a car which was later repossessed.
The defendant in Franklin argued that the vendor's reservation of
title contained in the sales contract was conclusive of the fact
that the defendant only obtained possession of the car, whereas
both title and possession must have been obtained by fraud in
order to constitute the charged offense. Franklin, 214 So. 2d at
925.
The court, quoting another Alabama case, stated:
"The retention of title by the seller is a
clause of the contract inserted for his
benefit. It is, at most, a form of security
for the payment of the purchase money. It is
not absolute ownership; for payment of the
debt, or tender within a reasonable time,
kept good, would divest the seller's title.
So far as the rights of the purchasers were
concerned, they were the owners of the
property, subject only to the right and
option of the seller to assert his reserved
title, and the security it afforded."
Id. (citation omitted).
We agree with the analyses of these courts. Although
appellant signed a Promissory Note and Security Agreement that
stated Brown's Mazda had the right to repossess the truck in the
event of non-payment, Brown's Mazda retained legal title to the
truck only for purposes of security. Brown's Mazda did not
retain absolute ownership of the truck once appellant completed
the paperwork and obtained delivery of the truck. To adopt
appellant's argument "would reward the industrious and designing
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thief who, having perpetrated the proper fraud by making false
representations, could escape criminal liability as long as the
official title remained with the owner as security." State v.
Meado, 472 N.W.2d 567, 571 (Wis. Ct. App. 1991) (holding that the
defendant obtained legal title to property where he obtained the
vehicle under a lease arrangement by fraudulent representation).
Furthermore, appellant signed and received a temporary
certificate of ownership, indicating that the parties agreed that
delivery of the certificate of title would occur at a later date.
The back of the certificate states: "A temporary certificate of
ownership issued by a dealer to a purchaser shall expire upon
receipt of certificate of title for the vehicle issued by the
Department [of Motor Vehicles] . . . ." The certificate further
provides: "If the dealer fails to produce the certificate of
title or certificate of origin or fails to apply for a
replacement certificate of title, the purchaser's ownership to
the vehicle may terminate and the purchaser shall have the right
to return the vehicle to the dealer . . . ." Thus, the temporary
certificate indicates that, during the time period the
certificate is in effect, the purchaser "owns" the vehicle.
Moreover, Code § 46.2-1542 supports this interpretation.
This section states: "The issuance of a temporary certificate of
ownership pursuant to this section shall have the effect of
vesting ownership to the vehicle in the purchaser for the period
that the certificate remains effective." Appellant argues that
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the Commonwealth failed to prove four explicit requirements under
Code § 46.2-1542. However, the documents completed by appellant
pertaining to his purchase of the truck contained the requisite
information. The dealership's license number appears on the
temporary certificate of ownership and on the application for
title and registration. The application for certificate of title
and registration indicates that appellant purchased a new vehicle
for which no certificate of title would have been available at
the time of purchase. See Code § 46.2-1544. The buyer's order
listed the vehicle information, the purchase price, the signature
of the salesman, and appellant's signature as the purchaser.
Therefore, we conclude that the property interest conveyed
by both the delivery of possession to appellant and the
completion of the temporary certificate of ownership in
appellant's name was sufficient to support a conviction for
larceny by false pretenses in violation of Code § 18.2-178.
Accordingly, the trial court did not err in ruling that the
temporary certificate of ownership was sufficient to transfer
ownership interest to appellant for purposes of this statute; for
this reason, the trial court did not err in denying appellant's
motion to strike the evidence.
III. Jury Instructions
Appellant further argues that the trial court erred in
refusing to grant several of his proffered jury instructions.
The court refused to give appellant's proffered Instruction H,
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which contained the elements of the offense of obtaining property
by false pretenses. The trial court granted the Commonwealth's
Instruction 2, 1 which also stated in slightly different form the
elements of the offense. "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)). "When
granted instructions fully and fairly cover a principle of law, a
trial court does not abuse its discretion in refusing another
instruction relating to the same legal principle." Stockton v.
1
Instruction 2 provided:
The Court instructs the jury that the defendant is charged
with the crime of obtaining property by false pretense. The
Commonwealth must prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant made a false
representation of a past event or existing
fact; and
(2) That the defendant had an intent to defraud
Brown's Mazda; and
(3) That because of the false representation,
Brown's Mazda gave the defendant possession
and title to the property; and
(4) That the value of the property was over
$200.00.
If you find from the evidence that the Commonwealth has
proved beyond a reasonable doubt each of the above elements of
the offense as charged, then you shall find the defendant guilty
and not fix his punishment until further instruction is heard by
you.
If you find that the Commonwealth has failed to prove beyond
a reasonable doubt any one or more of the elements of the
offense, then you shall find the defendant not guilty.
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Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984).
Here, the granted Instruction 2 adequately covered the applicable
principles of law.
Appellant contends the trial court erred by denying his
Instruction K, 2 which defined "material fact" as one which
"influences a person to act or not to act." However, the jury
was instructed that the dealer must have given appellant
possession and title to the vehicle because of the false
representation. While it may have been preferable to have
granted Instruction K, the jury was told in paragraph three of
Instruction 2, that the representation had to be material, i.e.,
that the dealer acted as he did because of it. Accordingly, we
do not find the denial of Instruction K to be reversible error.
However, the trial court also refused to give the jury
appellant's proffered Instruction J, which provided:
Fraudulent intent must be proved by more
than a mere showing that Mr. Lewis knowingly
provided a false statement to Brown's Mazda.
In addition, the fraudulent intent must
have existed at the time the false pretenses
were made.
For more than a century, the law has required proof that the
intent and the representation occur simultaneously. See Anable
v. Commonwealth, 65 Va. (24 Gratt.) 563, 567-68 (1873). The
2
Instruction K provided:
A material fact is one which influences a person to act or
not to act.
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Supreme Court has unambiguously held that in a prosecution for
larceny by false pretenses, the Commonwealth must prove "the
fraudulent intent . . . existed at the time the false pretenses
were made, by which the property was obtained." Riegert v.
Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 808 (1977).
Thus, in assessing whether Lewis was guilty of larceny by false
pretenses, the jury had to determine whether "the intent to
defraud existed at the time the act was committed." Id. The
jury was not so instructed. By omitting this element from the
jury instructions, the trial court failed to inform the jury "as
to the essential elements of the offense." Darnell, 6 Va. App.
at 488, 370 S.E.2d at 719. We find such failure to be error.
Because the jury should have been instructed that the intent to
defraud must have existed at the time the false representations
were made and because no other instruction addressed this
element, we reverse the conviction and remand for further
proceedings, if the Commonwealth be so advised.
Reversed and remanded.
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