Lewis v. Commonwealth

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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