Millard v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia

JENNIFER MILLARD
OPINION BY
v. Record No. 2287-99-3 JUDGE ROBERT J. HUMPHREYS
DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge

Kevin D. Tiller (Tiller & Tiller, P.C., on
brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Jennifer Millard appeals her conviction, after a jury

trial, on three separate charges of obtaining money by false

pretenses. Millard contends the trial court erred in denying

her motion to strike and her motion to set aside the verdicts

because the evidence was insufficient to support the three

separate charges. 1

I. Background

In the fall of 1998, Craig Funk contacted his employer, the

Appalachian Agency for Senior Citizens ("AASC"), and informed them

that he had not received three reimbursement checks for his

1
Millard was also convicted on three counts of uttering a
forged instrument. However, these convictions are not raised as
issues on this appeal.
services as a driver for AASC. AASC replied that the checks had

been processed and mailed to him. The checks were dated September

11, 1998, October 16, 1998 and October 23, 1998, respectively, and

made payable to Funk.

On November 5, 1998, Millard, who had been employed with AASC

during September and October of 1998, presented the three checks

to First Virginia Bank for cash. Funk's name was endorsed on the

back of each check. In addition, an endorsement for "Jennifer

Funk" appeared below Funk's endorsement on each check. Millard

represented herself to the bank teller as "Jennifer Funk." The

teller cashed the checks and gave Millard "one lump sum," in cash,

which equaled the total amount of the three checks.

On May 10, 1999, Millard was indicted on three counts of

obtaining money by false pretenses. The indictments did not list

the owner of the money taken, and the date of the offense was

shown as "on or about November 5, 1998" on each indictment.

At the close of the Commonwealth's case, Millard made a

motion to strike, arguing that two of the charges of obtaining

money by false pretenses should be dismissed. Millard contended

that because she presented the three checks "at the same time and

that . . . [the] money was returned at one time . . . this [was]

one transaction." The court denied the motion, stating:

Granted the, the teller counted all the cash
up and gave it to the person she identified
as Ms. Millard at one time. But, there were
three distinct presentations and three
distinct representations made to the bank

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 teller. So I think that that would support
the Commonwealth's breaking these out, so to
speak, into, into three different crimes.

Millard renewed the motion at the close of the evidence, and that

motion was also denied.

After conviction, Millard submitted a motion to set aside the

verdict. Millard again argued that because the three checks were

presented at the same time and the money was returned at the same

time, the act amounted to one continuous transaction that could be

charged only as one offense. The court denied Millard's motion,

finding:

There were three separate acts that she
committed in order to get monies. And, she
had to have done, she had to have made a
false representation or a, a representation
of some false fact on each of those
occasions before she could have received the
monies that were, that were actually I guess
represented by the checks that were involved
. . . . What we have in Ms. Millard's case
is three separate misrepresentations. And,
I think that that is the basis upon which
the Commonwealth may charge and the jury may
convict on three cases.

II. Analysis

Code § 18.2-178 provides:

If any person obtain, by any false pretense
or token, from any person, with intent to
defraud, money or other property which may
be the subject of larceny, he shall be
deemed guilty of larceny thereof; or if he
obtain, by any false pretense or token, with
such intent, the signature of any person to
a writing, the false making whereof would be
forgery, he shall be guilty of a Class 4
felony.

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 Thus, by statute, the obtaining of money by false pretenses

is larceny. See Hudson v. Commonwealth, 223 Va. 596, 597 n.2,

292 S.E.2d 317, 318 n.2 (1982). "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).

Whether the larceny of multiple items at or
about the same time from the same general
location constitutes a single larceny or
multiple offenses is an issue that most
courts have addressed early in the
development of their criminal jurisprudence.
The concept is commonly referred to as the
"single larceny doctrine." The principles
are easily stated and understood, but
application of the doctrine becomes
problematic when applied to the infinite
variety of circumstances that can arise.

Richardson v. Commonwealth, 25 Va. App. 491, 495, 489 S.E.2d

697, 699 (1997) (citations omitted). "The overriding principle

behind the single larceny doctrine is to prevent the state from

aggregating multiple criminal penalties for a single criminal

act." Id. at 496, 489 S.E.2d at 700.

While we have not previously considered whether the "single

larceny doctrine" applies to the particular statute at issue here,

we have previously applied this doctrine to other statutory

larceny offenses set forth in Chapter 18.2. See Acey v.

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Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432 (1999)

(holding that the single larceny doctrine may be applied to

larceny of a firearm pursuant to Code § 18.2-108.1(1)). As in

Acey, we find no manifest intent by the legislature in Code

§ 18.2-178 to abrogate common law larceny. In fact, "[t]he

definition of larceny remains unaffected, as it is in other

provisions of Chapter 18.2 addressing larceny." Id. at 248, 511

S.E.2d at 432-33. Thus, we find no reason why the doctrine

should not also apply to Code § 18.2-178.

In Acey, we explained the application of the "single larceny

doctrine" as follows:

A series of larcenous acts will be
considered a single count of larceny if they
"are done pursuant to a single impulse and
in execution of a general fraudulent
scheme." We must consider the following
factors when deciding whether the single
larceny doctrine applies: (1) the location
of the items taken, (2) the lapse of time
between the takings, (3) the general and
specific intent of the taker, (4) the number
of owners of the items taken and (5) whether
intervening events occurred between the
takings. "The primary factor to be
considered is the intent of the thief
. . . ."

Id. at 247, 511 S.E.2d at 432 (citations omitted).

Nevertheless, multiple unlawful takings constitute separate

larcenies if the thief acted upon a separate intent or impulse

for each theft. See Richardson, 25 Va. App. at 497-98, 489

S.E.2d at 700-01.

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 Here, the Commonwealth chose to indict Millard for her acts

of November 5, 1998. Specifically, the theory of the case

advanced by the Commonwealth and presented to the fact finder in

the form of jury instructions was that three larcenies occurred

when appellant presented the checks to First Virginia Bank with

forged endorsements, while representing herself to be Jennifer

Funk, thereby causing the bank to part with possession of the

money at issue. There is no dispute that the evidence proved

Millard presented the three checks in one transaction and that

during that same transaction, the teller gave her cash equaling

the total of the face amount of the three checks.

Based on the record as it appears before us, we find no

evidence from which the trial court could infer that Millard's

actions on November 5, 1998 were not "done pursuant to a single

impulse and in execution of a general fraudulent scheme." We do

not reach Millard's constitutional arguments, because these

arguments were not raised before the trial court. See Swann v.

Commonwealth, 247 Va. 222, 441 S.E.2d 195 (1994).

Accordingly, we reverse the decision of the trial court and

remand the matter with instructions to determine, with the

assistance of the Commonwealth, which two of the three

convictions and sentences for obtaining money by false pretenses

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to set aside, and to set aside such convictions and sentences in

conformance with this opinion.

Reversed and remanded.

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