COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Decker UNPUBLISHED
Argued at Norfolk, Virginia
ANGELA MAYE HOLT MEMORANDUM OPINION* BY v. Record No. 1252-14-1 JUDGE TERESA M. CHAFIN AUGUST 4, 2015 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge
J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
At the conclusion of a jury trial held in the Circuit Court of the City of Norfolk, Angela
Maye Holt (“Holt”) was convicted of obtaining money by false pretenses in violation of Code
§ 18.2-178 and embezzlement in violation of Code § 18.2-111. On appeal, she challenges the
sufficiency of the evidence supporting her convictions. For the reasons that follow, we affirm
Holt’s conviction of obtaining money by false pretenses. However, we find that the evidence
presented at trial was insufficient to support her conviction of embezzlement, and accordingly,
we reverse that conviction.
I. BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Holt and
Anthony Banks (“Banks”), the victim in the present case, began dating in 2012 when Banks was
seventeen years old and Holt was twenty-nine years old. Banks and Holt lived together at Holt’s
mother’s house.
In the spring of 2013, Banks agreed to purchase Holt’s Chevrolet Suburban to help her
make child support payments. Banks began making periodic payments to Holt for the purchase
of the vehicle in March 2013. He made a payment to Holt each time he received a paycheck, and
Holt’s mother observed Banks making some of these payments. Often, Banks would give his
entire paycheck to Holt to cover the couple’s living expenses as well as his vehicle payment.
Over the course of approximately five months, Banks paid Holt $900 for the Suburban,
and Holt signed the title of the vehicle over to him on July 29, 2013. With Holt’s permission,
Banks did not register the transaction with the Department of Motor Vehicles (“DMV”) because
it was cheaper for him to keep the vehicle on Holt’s automobile insurance policy rather than
transfer it to one of his own. Although both parties occasionally drove the Suburban before July
29, 2013, Banks testified that he had physical possession of the vehicle after that date.
On July 16, 2013, Aaron Smalley (“Smalley”), Holt’s former boyfriend and the father of
her children, was released from incarceration, and he and Holt quickly resumed their romantic
relationship. When Smalley came to Holt’s mother’s house to pick up his children on August 2,
2013,1 Smalley and Banks had an argument that eventually developed into a physical altercation.
As Smalley attempted to leave the house in another car owned by Holt, Banks took the keys of
the car to prevent Smalley from driving away with equipment and passes required for Banks’s
1 While Banks testified that the altercation occurred on August 3, 2013, he also testified that the altercation occurred on a Friday evening. Holt also testified that the altercation occurred on a Friday. As August 3, 2013, was a Saturday, the altercation likely occurred on August 2, 2013. -2- employment. Smalley then got into the Suburban and drove away. This altercation effectively
ended the romantic relationship between Holt and Banks, and Holt and Smalley were married in
December 2013.
Banks decided to record his title to the Suburban with the DMV as soon as possible in
order to regain possession of the vehicle. As the altercation between Smalley and Banks
occurred on a Friday evening, however, Banks waited until the following Monday to register his
title. When he arrived at the DMV, he learned that Holt had obtained a replacement title to the
vehicle on August 3, 2013, the day following the altercation, by claiming that the original title to
the vehicle had been lost or stolen. Holt’s replacement title rendered Banks’s original title
invalid, and neither the Suburban nor the $900 that Banks paid to Holt were ever returned to
him.2
At her trial, Holt testified that she never sold the Suburban to Banks. She also claimed
that he never paid her any money for the vehicle. Although Holt admitted that she signed the
title of the Suburban on July 29, 2013, she explained that she only did so in anticipation of
selling the vehicle to a third party. Holt testified that she stored the signed title in a bedside table
and that she never signed the title of the Suburban over to Banks. Holt claimed that she obtained
a replacement title to the Suburban because she feared the original title had been stolen when she
could not locate it following the altercation between Smalley and Banks. The jury rejected
Holt’s testimony concerning the sale of the vehicle and convicted her of obtaining money by
false pretenses and embezzlement, sentencing her to pay a $900 fine for each offense. Holt
appealed her convictions to this Court.
2 Banks briefly discussed buying another vehicle from Holt and allowing her to keep the Suburban, but these negotiations failed when Banks did not timely make the initial payment for the other vehicle. -3- II. ANALYSIS
On appeal, Holt contends that the evidence presented at trial was insufficient to prove
several elements of the offenses of which she was convicted. Specifically, Holt argues that the
evidence was insufficient to support her conviction of obtaining money by false pretenses
because it failed to establish that she “acted with a fraudulent intent to deprive [Banks] of money
or property.” She also claims that the evidence was insufficient to establish that she made a false
representation to Banks of any “material past and present fact,” and she requests that we review
this issue under the “ends of justice” exception to Rule 5A:18. Additionally, Holt contends that
the evidence was insufficient to support her conviction of embezzlement because it failed to
establish that she “converted property over which she had custody or control by virtue of a
position of trust.”
When considering the sufficiency of the evidence on appeal, we “presume the judgment
of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or
without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,
876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc). Under this standard, “a reviewing court does not ‘ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Crowder v.
Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)). It asks instead whether “‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Kelly v. Commonwealth,
41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson, 443 U.S. at 319).
We do not “substitute our judgment for that of the trier of fact” even if our opinion were to
differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
Furthermore, as previously stated, we review the evidence and all reasonable inferences derived -4- from it in the light most favorable to the Commonwealth, the prevailing party at trial. See, e.g.,
Archer, 26 Va. App. at 11, 492 S.E.2d at 831.
When we review the evidence under this deferential standard, we conclude that it was
sufficient to support Holt’s conviction of obtaining money by false pretenses. We agree with
Holt, however, that the evidence was insufficient to prove that she fraudulently converted any
property that had been entrusted to her, and therefore, we conclude that the evidence was
insufficient to support her conviction of embezzlement.
A. THE EVIDENCE WAS SUFFICIENT TO SUPPORT HOLT’S CONVICTION OF OBTAINING MONEY BY FALSE PRETENSES
Code § 18.2-178(A) provides, in pertinent part, that “[i]f any person obtain, by any false
pretense or token, from any person, with intent to defraud, money, a gift certificate or other
property that may be the subject of larceny, he shall be deemed guilty of larceny thereof . . . .”
To sustain a conviction for larceny by false pretenses,
the Commonwealth must prove: “(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) (quoting Bourgeois v.
Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976)); see also Austin v.
Commonwealth, 60 Va. App. 60, 66, 723 S.E.2d 633, 636 (2012).
1. INTENT TO DEFRAUD
A conviction of larceny by false pretenses requires proof that the accused intended to
defraud the victim. Riegert, 218 Va. at 518, 237 S.E.2d at 807 (citing Bourgeois, 217 Va. at 272,
227 S.E.2d at 717). Additionally, the Commonwealth must prove that the accused’s fraudulent
intent existed at the same time that he or she used false pretenses to obtain property from the -5- victim. See id. To have an intent to defraud, the accused must intend “to ‘deceive another
person, and to induce such other person, in reliance upon such deception, to assume, create,
transfer, alter, or terminate a right, obligation or power with reference to property.’” Bray v.
Commonwealth, 9 Va. App. 417, 422, 388 S.E.2d 837, 839 (1990) (quoting Black’s Law
Dictionary 381 (5th ed. 1979)). “‘Intent in fact is the purpose formed in a person’s mind and
may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by
a person’s conduct or by his statements.’” Austin, 60 Va. App. at 66, 723 S.E.2d at 636 (quoting
Vincent v. Commonwealth, 276 Va. 648, 652-53, 668 S.E.2d 137, 140 (2008)). “[W]hether the
required intent exists is generally a question for the trier of fact.” Nobles v. Commonwealth, 218
Va. 548, 551, 238 S.E.2d 808, 810 (1977).
“Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some
cases, such as proof of intent or knowledge, it is practically the only method of proof.” Austin,
60 Va. App. at 66, 723 S.E.2d at 636 (emphasis in original) (quoting Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). When the facts and circumstances of the present
case are considered in the light most favorable to the Commonwealth, the evidence presented at
trial was sufficient to establish that Holt intended to defraud Banks when she agreed to sell him
the Suburban and accepted payments from him for the purchase of the vehicle.
When Holt and Banks began their romantic relationship, Holt was more than ten years
older than Banks and Banks was a minor. Banks financially supported Holt, and she eventually
persuaded him to purchase the Suburban from her to help her pay child support. When Smalley,
Holt’s former boyfriend and the father of her children, was released from incarceration, she
quickly rekindled her romantic relationship with him and they were married within five months.
Based on these circumstances, the jury could have reasonably inferred that Holt never intended
to remain in a long-term romantic relationship with Banks and that their relationship was a -6- pretext on her part that allowed her to take advantage of Banks’s relative youth and inexperience
to obtain financial support from him.
Although Holt signed the title of the Suburban over to Banks on July 29, 2013, she knew
that Banks did not plan to register the transaction concerning the Suburban with the DMV for
insurance purposes. On August 2, 2013, however, a mere four days after Holt signed the title of
the Suburban over to Banks, Smalley came to Holt’s mother’s house and drove away in the
Suburban. Instead of persuading Smalley to return the Suburban to Banks, Holt went to the
DMV the next day and obtained a replacement title to the Suburban by claiming that the original
title was lost or stolen. By doing so, she invalidated the original title to the vehicle held by
Banks, and she never returned the Suburban to Banks or refunded the money he paid to her for
the vehicle.
Given these circumstances, the jury reasonably inferred that Holt never intended to sell
the Suburban to Banks. She reclaimed both physical possession of and title to the Suburban
within days of transferring ownership of the vehicle to him. The jury could have concluded that
Holt lied to Banks when she told him that she would sell him the Suburban in order to induce
him to make periodic payments to her to allegedly purchase the vehicle and that she never
intended to actually sell the vehicle to him.3 At a minimum, the jury could have inferred that
Holt had no intention to transfer the Suburban to Banks when she accepted his final payment for
3 While Holt testified that she never sold the Suburban to Banks, accepted payments from him for the vehicle, or signed the title of the vehicle over to him, the jury did not believe her testimony. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Elliott v. Commonwealth, 277 Va. 457, 462, 675 S.E.2d 178, 181 (2009) (emphasis added). The jury was “at liberty to discount [Holt’s] self-serving statements as little more than lying to conceal [her] guilt, and could treat such prevarications as affirmative evidence of guilt.” Armstead v. Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567 (2010) (citation and internal quotation marks omitted). -7- the vehicle on or around July 29, 2013, because she reclaimed both possession of and title to the
vehicle days later. Accordingly, we conclude that the evidence presented was sufficient to
establish that Holt intended to defraud Banks when she agreed to sell him the Suburban and
accepted payments from him for the purchase of that vehicle.
2. FALSE PRETENSES
The Commonwealth must prove that the defendant used “false pretenses for the purpose
of perpetrating the fraud” in order to sustain a conviction under Code § 18.2-178. See Riegert,
218 Va. at 518, 237 S.E.2d at 807.
A criminal false pretense has been defined as follows:
“[T]he false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation. According to the definition, the false pretense must be a representation as to an existing fact or past event. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within the statute, even though they induce the party defrauded to part with his property. But if false representations are made, some of which refer to existing facts or past events, while others refer solely to future events, a conviction may be had if it is shown that any of the representations as to existing facts induced the complaining witness to part with his property.”
Parker v. Commonwealth, 275 Va. 150, 154, 654 S.E.2d 580, 582 (2008) (quoting Hubbard v.
Commonwealth, 201 Va. 61, 66, 109 S.E.2d 100, 104 (1959)).
Holt argues that the Commonwealth failed to prove that she made a false representation
of an existing fact or past event that induced Banks to part with the $900 he paid for the
Suburban. Holt contends that even if she falsely represented that she would sell the Suburban to
Banks, such a representation constituted a promise or a reference to a future event, and therefore,
was insufficient to support her conviction of larceny by false pretenses. While Holt did not
-8- present this argument to the trial court, she requests that we consider this issue under the “ends of
justice” exception to Rule 5A:18.
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”
“‘The ends of justice exception is narrow and is to be used sparingly,’” and applies only in the
extraordinary situation where a miscarriage of justice has occurred. Redman v. Commonwealth,
25 Va. App. 215, 220-21, 487 S.E.2d 289, 272 (1997) (quoting Brown v. Commonwealth, 8
Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). “In order to show that a miscarriage of justice has
occurred, thereby invoking the ends of justice exception, the appellant must demonstrate that he
or she was convicted for conduct that was not a criminal offense or the record must affirmatively
prove that an element of the offense did not occur.” Id. at 221-22, 487 S.E.2d at 273 (emphasis
added).
“In order to invoke the ends of justice exception when sufficiency of the evidence has
been raised for the first time on appeal, an appellant must do more than show that the
Commonwealth failed to prove an element or elements of the offense.” Id. at 221, 487 S.E.2d at
272 (emphasis in original). “In order to avail oneself of the exception, [the appellant] must
affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have
occurred.” Id. (emphasis in original). “Therefore, ‘in examining a case for miscarriage of
justice, we do not simply review the sufficiency of the evidence under the usual standard, but
instead determine whether the record contains affirmative evidence of innocence or lack of a
criminal offense.’” Flanagan v. Commonwealth, 58 Va. App. 682, 695, 714 S.E.2d 212, 218
(2011) (quoting Wheeler v. Commonwealth, 44 Va. App. 689, 692, 607 S.E.2d 133, 135 (2005)).
-9- While the Commonwealth may have failed to prove a specific representation made by
Holt referencing an existing fact or past event, the record does not affirmatively prove that Holt
failed to make such a representation. In fact, the record implies that Holt made a false
representation concerning an existing fact. She represented that the Suburban was actually for
sale when she persuaded Banks to purchase the vehicle and make payments to her for that
purpose. Although Holt promised that she would sell the Suburban to Banks in the future when
he had completed all of his installment payments and paid her the full purchase price of the
vehicle, Banks had to rely to some degree on Holt’s representation that the Suburban was
actually for sale at the time when he agreed to purchase it and made payments for the vehicle.
See Parker, 275 Va. at 154, 654 S.E.2d at 582 (“‘[I]f false representations are made, some of
which refer to existing facts or past events, while others refer solely to future events, a conviction
may be had if it is shown that any of the representations as to existing facts induced the
complaining witness to part with his property.’” (quoting Hubbard, 201 Va. at 66, 109 S.E.2d at
104)).
At best, the Commonwealth’s failure to present additional evidence concerning the
specific false pretenses that Holt used to defraud Banks only demonstrates that a miscarriage of
justice may have occurred, not that a miscarriage of justice did occur. See Redman, 25 Va. App.
at 223, 487 S.E.2d at 273. As the record fails to affirmatively prove that Holt did not make a
false representation of an existing fact or past event and implies that she actually made such a
statement, we decline to apply the ends of justice exception to Rule 5A:18 to her argument
concerning this issue, and therefore, do not consider her argument that the evidence was
insufficient to prove that she used false pretenses to perpetrate the fraud at issue in this case.
- 10 - B. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT HOLT’S CONVICTION OF EMBEZZLEMENT
Code § 18.2-111 provides, in pertinent part, that “[i]f any person wrongfully and
fraudulently use, dispose of, conceal or embezzle any . . . personal property, tangible or
intangible, . . . which shall have been entrusted or delivered to him by another . . . he shall be
guilty of embezzlement.” To sustain a conviction under this statute, “the Commonwealth must
prove that the accused ‘wrongfully appropriated to [her] use or benefit, with the intent to deprive
the owner thereof, the property entrusted to [her].’” Brown v. Commonwealth, 56 Va. App.
178, 185-86, 692 S.E.2d 271, 275 (2010) (quoting Dove v. Commonwealth, 41 Va. App. 571,
577, 586 S.E.2d 890, 893 (2003)) (emphasis added). “[T]he Commonwealth must prove that the
[accused] was entrusted with the property of another,” and a “formal fiduciary relationship is not
necessary” between the parties. Chiang v. Commonwealth, 6 Va. App. 13, 17, 365 S.E.2d 778,
780 (1988). “To entrust is ‘[t]o give (a person) the responsibility for something . . . after
establishing a confidential relationship.’” Brown, 56 Va. App. at 186, 692 S.E.2d at 275
(quoting Black’s Law Dictionary 574 (8th ed. 2004)).
In the present case, Holt contends that the evidence was insufficient to support her
conviction of embezzlement because the Suburban was not entrusted to her care at the time that
it was wrongfully appropriated. The Commonwealth, however, argues that Holt was entrusted
with the Suburban when Banks did not record the change of its title with the DMV and that the
vehicle remained entrusted to her when she obtained a replacement title that invalidated Banks’s
title and thereby deprived him of ownership of the vehicle. We agree with Holt’s argument.
Banks obtained title to the Suburban on July 29, 2013, and he testified that he had
primary physical possession of the vehicle after that date. Although he failed to record the
change of title with the DMV, Banks did not intend for Holt to maintain an ownership interest in
- 11 - the Suburban. Rather, he did not record the transaction for insurance purposes. No evidence in
the record indicated that Banks believed that Holt still owned the Suburban after she signed the
title of the vehicle over to him, even though the title was still officially recorded in her name.
For all practical purposes, Banks owned the Suburban when Smalley took it on August 2, 2013,4
and the vehicle was no longer in Holt’s physical custody or control on that date and was not
entrusted to her care in any way.
Similarly, the Suburban was not in Holt’s custody or control when she obtained the
replacement title to it on August 4, 2013. While Holt was still the registered title holder of the
vehicle, her status as such did not establish that the vehicle was in any way entrusted to her care.
Banks had not allowed her to use the vehicle at that time or otherwise made her responsible for
it. Although she had the ability to deprive Banks of ownership of the Suburban by obtaining a
replacement title, she could only do so by fraudulently representing that she was still the owner
of the vehicle and that its original title had been lost or stolen. The Suburban was only officially
registered in Holt’s name for insurance reasons, and the vehicle was not entrusted to her for any
purpose.
As the Suburban was not entrusted to Holt at the time that it was wrongfully
appropriated, we conclude that the evidence presented at trial was insufficient to support Holt’s
conviction of embezzlement.
4 Typically, “‘[t]he owner of an automobile is the party who has legal title to it.’” Bolden v. Commonwealth, 28 Va. App. 488, 492, 507 S.E.2d 84, 86 (1998) (quoting Hall, Inc. v. Empire Fire & Marine Ins. Co., 248 Va. 307, 309, 448 S.E.2d 633, 635 (1994)). In certain circumstances, however, other documentation of a sale can effectively provide sufficient indicia of ownership of an automobile in the absence of legal title. See Shropshire v. Commonwealth, 40 Va. App. 34, 40, 577 S.E.2d 521, 524 (2003) (“title might be sufficiently proven by a conditional sale contract, promissory note and security agreement or similar evidence”). In this case, Banks’s title to the Suburban established that he was the owner of the vehicle even though the title was still officially recorded in Holt’s name.
- 12 - III. CONCLUSION
In summary, we conclude that the evidence presented was sufficient to support Holt’s
conviction of obtaining money by false pretenses. Holt’s fraudulent intent could be inferred
from the totality of the circumstances of the case, and no affirmative evidence in the record
established that she did not falsely represent a present fact or past event that induced Banks to
pay her for the Suburban. Additionally, we conclude that the evidence presented was insufficient
to support Holt’s conviction of embezzlement because it failed to prove that the Suburban was
entrusted to her at the time that it was wrongly appropriated. Accordingly, we affirm Holt’s
conviction of obtaining money by false pretenses and reverse her conviction of embezzlement.
Affirmed in part, and reversed in part.
- 13 - Petty, J., concurring, in part, and dissenting, in part.
I agree with the majority that the evidence was insufficient to support Holt’s conviction
of embezzlement and concur with the reversal of that conviction. I would further conclude,
however, that the evidence was also insufficient to support Holt’s conviction of larceny by false
pretenses. Although I recognize that Holt did not explicitly mention the false pretense element
of the offense in her motion to strike, I would apply the “ends of justice” exception to Rule
5A:18 and reverse that conviction also. Accordingly, I respectfully dissent.
As the majority notes, one of the elements of the crime of larceny by criminal false
pretense is the use of a false pretense for the purpose of perpetrating the fraud. “Moreover, the
false pretense must be a representation as to an existing fact or a past event.” Bourgeois v.
Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976). “‘False representations
amounting to mere promises or statements of intention have reference to future events and are
not criminal within the statute, even though they induce the party defrauded to part with his
property.’” Parker v. Commonwealth, 275 Va. 150, 154, 654 S.E.2d 580, 582 (2008) (quoting
Hubbard v. Commonwealth, 201 Va. 61, 66, 109 S.E.2d 100, 104 (1959)).
The majority acknowledges that the Commonwealth failed to prove a specific
representation by Holt of an existing fact or past event. The Commonwealth specifically argued
that “[the] false representation was that she would give over the car to Mr. Banks at the end of
the transaction.” This was a “mere promise[] or statement[] of intention [with] reference to
future events” and cannot be the basis for false pretenses even if the statement “induce[d] the
party defrauded to part with his property.” See Parker, 275 Va. at 154, 654 S.E.2d at 582. The
majority suggests that Banks relied on Holt’s representation that the Suburban was for sale and
that she would give it to him when he paid the money. But this is merely another way of saying
Holt induced Banks to part with his money by a promise or statement of intention with reference
- 14 - to future events. It does not qualify as a representation of an existing fact or past event. I note
also that to the extent Banks relied on this promise, his reliance was well placed. Banks himself
testified that he had possession of the Suburban after July 29, 2013 and that the title was signed
over to him on that day. Thus, whatever else happened after that, the sale was completed.
Simply put, misrepresentation of an intention to do something in the future cannot be the
predicate representation for false pretenses. However, that was exactly what the Commonwealth
argued was the false pretense it established. As a result, Holt was convicted for conduct that was
not a crime. “Accordingly, there was error in the judgment appealed from and application of the
ends of justice exception is necessary to avoid a grave injustice.” Ali v. Commonwealth, 280
Va. 665, 671, 701 S.E.2d 64, 68 (2010). I would apply the ends of justice exception to address
Holt’s argument that no criminal false representation was made. Because the record supports her
position, I would reverse her conviction.
The majority, however, denies the “ends of justice” exception on the basis that Holt did
not affirmatively prove that an element of the offense did not occur. The majority correctly
states that to invoke the ends of justice exception, “the appellant must demonstrate that he or she
was convicted for conduct that was not a criminal offense or the record must affirmatively prove
that an element of the offense did not occur.” Redman v. Commonwealth, 25 Va. App. 215,
220-21, 487 S.E.2d 289, 272 (1997). Further, we must “determine whether the record contains
affirmative evidence of innocence or lack of a criminal offense.’” Flanagan v. Commonwealth,
58 Va. App. 682, 695, 714 S.E.2d 212, 218 (2011).
Holt was convicted for conduct that was not a criminal offense because she made no false
representation of a present fact or past event. Further, the record contains affirmative evidence
that no such false representation occurred. Holt, Holt’s mother, and Banks all testified about the
exchange of money for the Suburban. After all of the testimony, the only statement the - 15 - Commonwealth pointed to as a false representation was Holt’s intent to not deliver the Suburban
in the future. “The non-offense prong of the ends of justice analysis is similar to a legal
impossibility analysis.” Masika v. Commonwealth, 63 Va. App. 330, 335, 757 S.E.2d 571, 573
(2014) (“Legal impossibility occurs when a defendant’s actions would not constitute a crime,
even if they were carried out fully and exactly as he intended.”). Here, it is a legal impossibility
to be guilty of larceny by false pretenses when the false representation made was one of future
intent to complete the contract, rather than one of existing fact or past event.
In a strange twist, the majority would place on Holt the impossible burden of
affirmatively proving a negative—that she did not make a false representation. Rather, I believe
our precedent requires us to determine from the record that the element was affirmatively
addressed and the evidence supporting the element was insufficient. Here, “the evidence clearly
and affirmatively shows that an element of one of the crimes of which [appellant] was convicted
did not occur.” Ali, 280 Va. at 671, 701 S.E.2d at 68. Consequently, I would have reviewed the
appeal under the “ends of justice” exception to Rule 5A:18 and reversed Holt’s conviction for
larceny by false pretenses.
- 16 -