COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
ROBERT EUGENE LEE
MEMORANDUM OPINION * BY
v. Record No. 0770-97-2 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
James J. Ilijevich (Office of the Public
Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Robert Eugene Lee contends that the evidence is insufficient
to support his conviction of obtaining money by false pretenses
with the intent to defraud in violation of Code § 18.2-178. We
agree, and reverse.
I.
Margaret Dahmen rented rooms in her Spotsylvania County home
to Lee and his wife, Carol Lee. On or about November 1, 1995,
Carol told Mrs. Dahmen that she had inherited some money and
showed Mrs. Dahmen a letter from a New York attorney reporting a
possible distribution to her. Lee was not present at this
conversation. Carol asked whether she could deposit the funds in
Mrs. Dahmen's savings account. Mrs. Dahmen agreed and gave Carol
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
her account number so that the attorney could wire the funds
directly to that account.
On November 7, 1995, Carol told Mrs. Dahmen, in the presence
of Lee, that money had been wired to the account. Carol then
asked for a check for $2,500 so that she could pay a medical
bill. Mrs. Dahmen handed a blank check to Carol who handed it to
Lee. Lee then filled out the check at Mrs. Dahmen's request, and
she signed it.
Two days later, Carol told Mrs. Dahmen that she and Lee were
going away for a few days. Mrs. Dahmen never saw them again.
She discovered thereafter that no money had been deposited into
her account on behalf of Carol. However, the check made payable
to Lee had been cashed.
II.
The judgment of a trial court sitting without a jury will
not be set aside unless it is plainly wrong or without evidence
to support it. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). When the sufficiency of the evidence is
challenged on appeal, "it is our duty to look to that evidence
which tends to support the verdict and to permit the verdict to
stand unless plainly wrong." Snyder v. Commonwealth, 202 Va.
1009, 1116, 121 S.E.2d 452, 457 (1961).
Viewing the evidence in the light most favorable to the
Commonwealth, Martin, 4 Va. App. at 443, 358 S.E.2d at 418, we
find that the Commonwealth failed to prove beyond a reasonable
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doubt that Lee knew that his wife's money had not been deposited
in Mrs. Dahmen's account. "To sustain a conviction of larceny by
false pretenses, the Commonwealth must prove: (a) that the
accused intended to defraud; (b) that a fraud actually occurred;
(c) that the accused used false pretenses to perpetrate the
fraud; and (d) that the false pretenses induced the owner to part
with his property." Wynne v. Commonwealth, 18 Va. App. 459, 460,
445 S.E.2d 160, 161 (1994) (en banc) (citation omitted).
Lee made no representation to Mrs. Dahmen concerning the
inheritance or its deposit into her savings account. Thus, the
Commonwealth was required to produce circumstantial or direct
evidence proving that he had such guilty knowledge as to prove
his knowledge of the falsehood at the time Carol made the false
statement. See Sult v. Commonwealth, 221 Va. 915, 275 S.E.2d 608
(1981) (holding evidence failed to show principal's knowledge of
fraud); Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
759 (1980) (concluding that participation in purchase, sale and
transfer of vehicles showed knowledge); Cunningham v.
Commonwealth, 219 Va. 399, 402-03, 247 S.E.2d 683, 685 (1978)
(finding that defendant concealed fact that she stopped payment
on check to obtain possession of car).
No such knowledge, inferred or otherwise, was shown. Lee's
mere presence and filling out the check at Mrs. Dahmen's request
did not prove that he had knowledge of the underlying deception
at the time Carol made the false statements. See Riegert v.
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Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 808 (1977)
(fraudulent intent must have existed at the time the false
statement was made). While public policy seeks free and
confidential communication between husband and wife, see Edwards
v. Commonwealth, 20 Va. App. 470, 474-75, 457 S.E.2d 797, 799-800
(1995), we cannot presume that information known to one is known
to the other.
Accordingly, the conviction is reversed and the charge is
dismissed.
Reversed and dismissed.
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