Ronald Dean Northcraft v. Commonwealth of Virginia
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Opinion
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Malveaux and Causey PUBLISHED
Argued at Richmond, Virginia
RONALD DEAN NORTHCRAFT OPINION BY v. Record No. 1067-21-2 JUDGE MARY BENNETT MALVEAUX SEPTEMBER 26, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant, Judge
Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury convicted Ronald Dean Northcraft (“appellant”) of three counts of grand larceny of a
motor vehicle, in violation of Code § 18.2-95, five counts of unlawfully obtaining documents from
the Department of Motor Vehicles (“DMV”), in violation of Code § 46.2-105.2(A), five counts of
making a false statement on an application for a certificate of title, in violation of Code § 46.2-605,
one count of money laundering, in violation of Code § 18.2-246.3(A), and one count of attempted
money laundering, in violation of Code §§ 18.2-26, -246.3(A). On appeal, he argues that the trial
court erred in: (1) failing to strike a juror for cause, (2) denying his motions to strike the evidence on
all charges, and (3) denying his proposed jury instructions. For the following reasons, we affirm.
I. BACKGROUND
Virginia’s Abandoned Vehicle Process
Code §§ 46.2-1200 through -1207 establish Virginia’s abandoned vehicle process
(“AVP”) allowing applicants to dispose of an abandoned motor vehicle, trailer, or manufactured home left on a highway, public property, or private property. An applicant initiates the process
by completing an online application for an abandoned vehicle record request through the DMV’s
website. After the online application is submitted, the DMV conducts a record search and sends
a certified letter to the vehicle’s owner or lienholder. See Code § 46.2-1202(A) (directing that
“[a]ny person in possession of an abandoned motor vehicle shall initiate with the [DMV], in a
manner prescribed by the Commissioner, a search for the owner and/or lienholder of record of
the vehicle”).1 The notice letter advises the vehicle’s owner or lienholder that the AVP is in
progress for the vehicle and that they have 15 days from the date of notice to reclaim and remove
the vehicle. Code § 46.2-1202(B). If the vehicle remains unclaimed following the 15-day notice
period, the owner or lienholder “shall have waived all right, title, and interest” in the vehicle. Id.
After the 15-day reclamation period expires, the applicant seeking title to an abandoned
vehicle must post an “intent to auction” notice on the DMV website for at least 21 days. See
Code § 46.2-1202.1. Once the 21-day “intent to auction” notice period expires, the applicant
may obtain title to the vehicle.
At trial, Alacia Moore, the DMV employee in charge of the agency’s AVP, testified
about the online record request application as it existed in 2018.2 When an AVP applicant
initiated the record request on the DMV’s website, the website told the applicant to “[u]se this
transaction to . . . [o]btain title for or sell an abandoned vehicle . . . in your possession.” After
viewing this information, applicants then entered the vehicle’s Vehicle Identification Number
Virginia’s AVP statutes were amended in 2020 and 2021. See 2020 Va. Acts chs. 964, 1
965; 2021 Va. Acts Spec. Sess. I ch. 374. The amendments did not substantively change the language relevant here, and we cite the versions of the statutes in effect when the offenses occurred. 2 The Commonwealth also introduced a series of slides showing how an online record request application would have been completed in 2018. -2- (“VIN”).3 They next chose from three options indicating that they were “in possession of a
motor vehicle” that “[1] [w]as left unattended on public property for more than 48 hours in
violation of a state law or local ordinance[,] [2] has remained for more than 48 hours on private
property without the consent of the property’s owner . . . [,] [or] [3] was left unattended on the
shoulder of a primary highway.” To continue with the application, the applicant had to then
certify that the information they provided in their application was “true and correct.” Following
this, after the applicant paid a fee, the DMV would process the transaction, and a record request
receipt was generated that contained the vehicle’s information.
After an applicant completed the online record request application, the DMV required an
applicant to produce three documents at a DMV customer service center in order to process a
title for vehicles obtained via the AVP: (1) an application of certificate for title, (2) a vehicle
removal certificate, and (3) the record request receipt. The application for certificate of title is
the application form used to apply for the title to an abandoned vehicle. This form requires an
applicant to list the vehicle owner’s contact information. It also includes a certification section
where the applicant affirms that “all information presented in this form is true and correct, that
any documents I . . . have presented to DMV are genuine, and that the information included in all
supporting documentation is true and accurate.” The vehicle removal certificate is the transfer of
ownership document used for abandoned vehicles. The top section of the form requires the
applicant to state where the vehicle is located and the address of the “person/authorized agent in
possession of vehicle.”
After an applicant presented a record request receipt, an application for certificate of title,
and a vehicle removal certificate, a DMV customer service representative processed the
3 Moore testified that a VIN is a number used to identify a particular vehicle. At trial, a car dealership parts manager testified that an individual could find the VIN for a particular vehicle by looking at the VIN plate visible through a vehicle’s windshield. -3- documents, collected any fees, and gave the vehicle’s title over to the applicant. Once an
applicant was issued the title, the DMV recorded that individual as the owner of the vehicle.
When processing these documents, the DMV customer service representative did not
have access to the information provided on the online record request application. Moore testified
that the DMV’s role in the AVP was “just to implement the process” and that the DMV did not
“have a role in making sure that the person who applies is who is allowed to apply.”
Moore further testified that anyone could use the AVP “[a]s long as they are in
possession and meet the requirements” and that the program was not limited to local
governments. But Moore also testified that it was her understanding that if a vehicle was
abandoned on public property, the program was intended for local governments’ use. She
acknowledged that in 2018 there was no information provided during the process indicating that
the AVP for vehicles on public property was limited solely to local governments.4
The Offenses
In May and early June of 2018, appellant completed an online record request application
for five vehicles: a 2006 Kia Optima, a 2016 Mini Cooper, a 2014 Chevrolet Camaro, a 2009
Mini Cooper, and a 2012 Toyota Camry. On his applications, appellant stated that the vehicles
were respectively located on the following public streets: 5400 Montbrook Circle; 2234 Park
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Malveaux and Causey PUBLISHED
Argued at Richmond, Virginia
RONALD DEAN NORTHCRAFT OPINION BY v. Record No. 1067-21-2 JUDGE MARY BENNETT MALVEAUX SEPTEMBER 26, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant, Judge
Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury convicted Ronald Dean Northcraft (“appellant”) of three counts of grand larceny of a
motor vehicle, in violation of Code § 18.2-95, five counts of unlawfully obtaining documents from
the Department of Motor Vehicles (“DMV”), in violation of Code § 46.2-105.2(A), five counts of
making a false statement on an application for a certificate of title, in violation of Code § 46.2-605,
one count of money laundering, in violation of Code § 18.2-246.3(A), and one count of attempted
money laundering, in violation of Code §§ 18.2-26, -246.3(A). On appeal, he argues that the trial
court erred in: (1) failing to strike a juror for cause, (2) denying his motions to strike the evidence on
all charges, and (3) denying his proposed jury instructions. For the following reasons, we affirm.
I. BACKGROUND
Virginia’s Abandoned Vehicle Process
Code §§ 46.2-1200 through -1207 establish Virginia’s abandoned vehicle process
(“AVP”) allowing applicants to dispose of an abandoned motor vehicle, trailer, or manufactured home left on a highway, public property, or private property. An applicant initiates the process
by completing an online application for an abandoned vehicle record request through the DMV’s
website. After the online application is submitted, the DMV conducts a record search and sends
a certified letter to the vehicle’s owner or lienholder. See Code § 46.2-1202(A) (directing that
“[a]ny person in possession of an abandoned motor vehicle shall initiate with the [DMV], in a
manner prescribed by the Commissioner, a search for the owner and/or lienholder of record of
the vehicle”).1 The notice letter advises the vehicle’s owner or lienholder that the AVP is in
progress for the vehicle and that they have 15 days from the date of notice to reclaim and remove
the vehicle. Code § 46.2-1202(B). If the vehicle remains unclaimed following the 15-day notice
period, the owner or lienholder “shall have waived all right, title, and interest” in the vehicle. Id.
After the 15-day reclamation period expires, the applicant seeking title to an abandoned
vehicle must post an “intent to auction” notice on the DMV website for at least 21 days. See
Code § 46.2-1202.1. Once the 21-day “intent to auction” notice period expires, the applicant
may obtain title to the vehicle.
At trial, Alacia Moore, the DMV employee in charge of the agency’s AVP, testified
about the online record request application as it existed in 2018.2 When an AVP applicant
initiated the record request on the DMV’s website, the website told the applicant to “[u]se this
transaction to . . . [o]btain title for or sell an abandoned vehicle . . . in your possession.” After
viewing this information, applicants then entered the vehicle’s Vehicle Identification Number
Virginia’s AVP statutes were amended in 2020 and 2021. See 2020 Va. Acts chs. 964, 1
965; 2021 Va. Acts Spec. Sess. I ch. 374. The amendments did not substantively change the language relevant here, and we cite the versions of the statutes in effect when the offenses occurred. 2 The Commonwealth also introduced a series of slides showing how an online record request application would have been completed in 2018. -2- (“VIN”).3 They next chose from three options indicating that they were “in possession of a
motor vehicle” that “[1] [w]as left unattended on public property for more than 48 hours in
violation of a state law or local ordinance[,] [2] has remained for more than 48 hours on private
property without the consent of the property’s owner . . . [,] [or] [3] was left unattended on the
shoulder of a primary highway.” To continue with the application, the applicant had to then
certify that the information they provided in their application was “true and correct.” Following
this, after the applicant paid a fee, the DMV would process the transaction, and a record request
receipt was generated that contained the vehicle’s information.
After an applicant completed the online record request application, the DMV required an
applicant to produce three documents at a DMV customer service center in order to process a
title for vehicles obtained via the AVP: (1) an application of certificate for title, (2) a vehicle
removal certificate, and (3) the record request receipt. The application for certificate of title is
the application form used to apply for the title to an abandoned vehicle. This form requires an
applicant to list the vehicle owner’s contact information. It also includes a certification section
where the applicant affirms that “all information presented in this form is true and correct, that
any documents I . . . have presented to DMV are genuine, and that the information included in all
supporting documentation is true and accurate.” The vehicle removal certificate is the transfer of
ownership document used for abandoned vehicles. The top section of the form requires the
applicant to state where the vehicle is located and the address of the “person/authorized agent in
possession of vehicle.”
After an applicant presented a record request receipt, an application for certificate of title,
and a vehicle removal certificate, a DMV customer service representative processed the
3 Moore testified that a VIN is a number used to identify a particular vehicle. At trial, a car dealership parts manager testified that an individual could find the VIN for a particular vehicle by looking at the VIN plate visible through a vehicle’s windshield. -3- documents, collected any fees, and gave the vehicle’s title over to the applicant. Once an
applicant was issued the title, the DMV recorded that individual as the owner of the vehicle.
When processing these documents, the DMV customer service representative did not
have access to the information provided on the online record request application. Moore testified
that the DMV’s role in the AVP was “just to implement the process” and that the DMV did not
“have a role in making sure that the person who applies is who is allowed to apply.”
Moore further testified that anyone could use the AVP “[a]s long as they are in
possession and meet the requirements” and that the program was not limited to local
governments. But Moore also testified that it was her understanding that if a vehicle was
abandoned on public property, the program was intended for local governments’ use. She
acknowledged that in 2018 there was no information provided during the process indicating that
the AVP for vehicles on public property was limited solely to local governments.4
The Offenses
In May and early June of 2018, appellant completed an online record request application
for five vehicles: a 2006 Kia Optima, a 2016 Mini Cooper, a 2014 Chevrolet Camaro, a 2009
Mini Cooper, and a 2012 Toyota Camry. On his applications, appellant stated that the vehicles
were respectively located on the following public streets: 5400 Montbrook Circle; 2234 Park
Avenue; 700 North Davis Street; “Grove Avenue/Roseneath”; and “Hancock Street.” On each
online record request application, appellant listed his reason for possession as “possession of a
4 Moore acknowledged that the AVP procedure had changed since 2018. Currently, a private individual may only use the online record request application if they are in possession of a vehicle that had remained for more than 48 hours on private property without the consent of the property’s owner; the other two AVP options, a vehicle on public property or on the shoulder of a highway, are limited to use by government localities. See Code § 46.2-1200.3 (effectuated January 1, 2022 and providing that “[n]o person may remove or sell any abandoned vehicle left on public property or the shoulder of a primary highway unless such person is acting pursuant to an agreement for such removal or sale with a local government entity or law-enforcement agency and has actual possession of the vehicle”). -4- motor vehicle . . . that was left unattended on public property for more than 48 hours in violation
of a state law or local ordinance.”
Nathaniel White, Rebecca Shaw, Austin McCune, Billy Gilmore, and Altonia Foster
were the owners of vehicles connected with appellant’s online record request applications. From
May through July 2018, these individuals usually parked their vehicles on the public streets
listed on appellant’s online record request applications.5 At least four of the owners did not have
current registration stickers displayed on their vehicles during this time. In July 2018, four of the
owners noticed that the vehicles were not where they usually parked them.6 Three of the
vehicles were never returned to their owners, and one vehicle was returned to its owner months
after it went missing.
The DMV sent notice letters to each owner at their last known address informing them
that appellant was claiming that he was in possession of their vehicles and was seeking to have
them declared abandoned. Each individual testified that they had not given appellant possession
or ownership of their vehicle.
On July 6, 2018, appellant filled out an application for certificate of title and vehicle
removal certificate for the 2006 Kia Optima and 2016 Mini Cooper, and on July 12, 2018 he
filled out these same forms for the 2014 Chevrolet Camaro, the 2009 Mini Cooper, and the 2012
Toyota Camry. On the applications for certificate of title, appellant listed himself as the owner
of the vehicles. On all five vehicle removal certificates, appellant listed himself as the
“person/authorized agent in possession of vehicle.”
5 Because he was ill at this time, Gilmore’s vehicle was driven by his wife, Mildred Gilmore. 6 McCune’s vehicle was never taken from him. -5- On July 6, 2018, Shakeima Chisholm, a DMV employee, processed appellant’s
applications for certificates of title for the 2006 Kia Optima and 2016 Mini Cooper. Chisholm
thought it was unusual that appellant possessed two abandoned vehicles and asked him if he
worked for a towing company or dealership. Appellant responded that he did not and said that
the vehicles had been left on his property. Chisholm processed the applications and gave
appellant the titles to the two vehicles. Although Chisholm thought it “odd that it was two
abandoned vehicles on someone’s property,” she testified that if someone had all the necessary
paperwork to complete the application for certificate of title, she was unable to reject the
application even if she thought “something might not be right on the form.”
On July 12, 2018, Ebony Bell, another DMV employee, processed appellant’s
applications for certificates of title for the 2014 Chevrolet Camaro, the 2012 Toyota Camry, and
the 2009 Mini Cooper. Bell thought that appellant’s applications were “unusual” because he
used the AVP for three vehicles all at once and because the vehicles were all less than ten years
old. In her experience, the AVP was used “for much older vehicles being left on the property.”
She asked appellant if the vehicles were located on his property, and he said yes and that the
vehicles “were just left on his property.” Before she gave appellant the titles, she spoke with her
manager and was told to process the applications because appellant’s paperwork was in order.
Bell issued titles for the three vehicles to appellant.
Also on July 12, 2018, appellant ordered a replacement key for the 2009 Mini Cooper.
Dwaine Tolliver, the owner of Autosource, LLC, auctioned vehicles on behalf of others
for a portion of the proceeds. His business sold the vehicles through Richmond Auto Auction.
He entered into an agreement with appellant to auction two vehicles, the 2009 and 2016 Mini
Coopers. Appellant brought the vehicles to Tolliver and gave the vehicles’ titles to him. On July
20, 2018, the 2009 Mini Cooper was sold at auction by Tolliver for about $4,800. That same
-6- day, Tolliver tried to sell the 2016 Mini Cooper at auction. Richmond Auto Auction informed
Tolliver that the vehicle had been reported stolen, and the vehicle was not auctioned. The
vehicle was left at the auction by Tolliver, and he never received money for it. Tolliver also
returned the money received for the 2009 Mini Cooper to Richmond Auto Auction after the
second car was identified as stolen.
Detective Alexandra Davila with the Richmond City Police Department began
investigating the case after receiving multiple reports of stolen vehicles. Davila contacted
appellant and told him she had received reports of stolen vehicles along with notice letters from
the DMV indicating that he was the person the owners needed to contact. Appellant told her that
the “vehicles were his, and in his possession, and he had obtained them legally.” After obtaining
a search warrant, Davila searched appellant’s home. During the search, Davila found the 2009
Mini Cooper’s license plate, along with several items that Shaw, the owner of the vehicle,
identified as personal items she had left in the Mini Cooper.
After the Commonwealth presented its case-in-chief, appellant moved to strike the
evidence on all of the offenses. The trial court denied appellant’s motions to strike. Appellant
did not present any evidence.
Appellant was convicted by the jury on all offenses. Appellant filed a motion to set aside
the money laundering and attempted money laundering convictions, which the court denied.
This appeal followed.
II. ANALYSIS
A. Motion to Strike Juror
During voir dire, the trial court asked the venire preliminary questions about the
presumption of innocence and the requirement to remain impartial and without bias to both
appellant and the Commonwealth. Counsel for appellant then questioned the venire, asking, “Is
-7- there anyone through hearing that the [Commonwealth] has charged [appellant] with 15 felony
charges, so we are here for 15 separate felonies, who feels that [appellant] must have done
something wrong?” In response, one juror said, “That actually was my initial thought when I
first heard it is that I can understand one, maybe two . . . . But 15 felonies is just not, to me, an
accident.” When asked if anyone else felt the same, Juror R.7 raised her hand. Counsel for
appellant asked Juror R., “do you feel as though you are going to be able to set aside that initial
reaction?” She responded, “I have set it aside.”
The following exchange then occurred between counsel for appellant, Juror R., and the
trial court:
[DEFENSE ATTORNEY]: So we were talking a little bit before the fact that [appellant] is charged and how that kind of gave you an initial reaction. So [the trial court] instructed you that you are not to consider and you will be instructed from the jury [sic] that you are not to consider the fact that he is charged as evidence against him. Do you think you will be able to set aside that initial reaction?
[JUROR R.]: I don’t know, because it kind of confused me. It seemed like a tow truck driver was taking (inaudible). You understand what I am saying?
THE COURT: Well, see, that’s the thing--
[JUROR R.]: And I have gave away a salvage car before.
[DEFENSE ATTORNEY]: Okay.
[JUROR R.]: It just broke down, and I just called the tow truck people to come and get it and I salvaged it to them. I couldn’t deal with it. It was just kind of hard.
[DEFENSE ATTORNEY]: And I know it is especially hard, because we were just giving you little tidbits of what the evidence is going to be. But, I guess, the question that I am asking is your initial reaction to the number of charges was that he must have done something wrong. Am I correct on saying that?
7 We use the juror’s initial to protect her privacy. -8- [JUROR R.]: Yes.
[DEFENSE ATTORNEY]: But do you think that you would be able to set aside that initial reaction if you are--
[JUROR R.]: I guess I will have to listen to the evidence.
[DEFENSE ATTORNEY]: So you think you could--
[JUROR R.]: (Inaudible) but I know I have to listen to the evidence, though. But it kind of would still be in my head.
[DEFENSE ATTORNEY]: I appreciate that.
[JUROR R.]: I don’t want to--
THE COURT: Well, if I instruct you it’s not to be considered--
[JUROR R.]: Right.
THE COURT: --would you be able to follow the law?
[JUROR R.]: Yes.
THE COURT: I mean, there are a lot of facts here. And it is tough on you all to make -- answer some of these questions, because you don’t know the facts of the case.
THE COURT: They just give you a little snippet and you started thinking this and you find out later, well, maybe--
THE COURT: But the key -- Because you don’t know the facts, the key is if I tell you the law, do not infer the fact that he is charged, and has been indicted, and is on trial, don’t infer that he is guilty. You can only find him guilty based on the law and the evidence.
THE COURT: Can you apply that fairly?
THE COURT: You wouldn’t say I can’t apply that--
[JUROR R.]: No, no. That is your rule, and I have to do it the way you say do it. -9- THE COURT: Okay. Well, that’s fine.
THE COURT: I don’t want to put words in your mouth. I want you to understand that that’s the process.
[JUROR R.]: I understand.
THE COURT: Okay.
The Commonwealth asked no further questions of Juror R. Counsel for appellant moved
to strike Juror R. for cause, which the court denied.
On appeal, appellant argues that the trial court erred in not striking Juror R. for cause
because her voir dire demonstrated that she could not set aside the number of charges appellant
was facing and the implication that this meant he must have done something wrong. Appellant
contends that this opinion was “demonstrably fixed” because Juror R. told the court that while
she knew she had to listen to the evidence, the number of offenses charged “kind of would still
be in [her] head.”
Both the Virginia and United States Constitutions protect a defendant’s right to be tried
by an impartial jury. Va. Const. art. I, § 8; U.S. Const. amend. VI; see also Code § 8.01-358
(providing that members of the venire must “stand indifferent in the cause”). “[A] prospective
juror ‘must be able to give [the accused] a fair and impartial trial. Upon this point nothing
should be left to inference or doubt.’” Bradbury v. Commonwealth, 40 Va. App. 176, 180 (2003)
(second alteration in original) (quoting Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943
(1879)). “[T]he Constitution does not require specific procedures or tests for determining the
impartiality of a jury.” Morva v. Commonwealth, 278 Va. 329, 341 (2009). However, “[b]y
- 10 - ancient rule, any reasonable doubt as to a juror’s qualifications must be resolved in favor of the
accused.” Breeden v. Commonwealth, 217 Va. 297, 298 (1976).8
“[A] trial court’s denial of a motion to strike a juror for cause ‘will not be disturbed on
appeal unless there has been manifest error amounting to an abuse of discretion.’” Townsend v.
Commonwealth, 270 Va. 325, 329-30 (2005) (quoting Barrett v. Commonwealth, 262 Va. 823,
826 (2001)). An underlying question of juror impartiality is one of fact, and the trial court’s
determination on the subject is “entitled to great deference on appeal” unless “plainly wrong or
unsupported by the record.” Huguely v. Commonwealth, 63 Va. App. 92, 121, 127 (2014). In
addressing whether a juror should have been struck for cause, an appellate court must consider
the juror’s “entire voir dire, not just isolated portions.” Juniper v. Commonwealth, 271 Va. 362,
401 (2006) (quoting Jackson v. Commonwealth, 267 Va. 178, 191 (2004)).
It is well settled that “[i]f [a juror] has any interest in the cause, or is related to either
party, or has expressed or formed any opinion, or is sensible of any bias or prejudice, he is
excluded by the law.” Keepers v. Commonwealth, 72 Va. App. 17, 42 (2020) (second alteration
in original) (quoting Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 60-61 (2011)). “A
manifest error in refusing to strike a juror ‘occurs when the record shows that a prospective juror
cannot or will not lay aside his or her preconceived opinion.’” Harvey v. Commonwealth, 76
Va. App. 436, 454 (2023) (quoting Taylor v. Commonwealth, 67 Va. App. 448, 456 (2017)).
However, “[i]t is not uncommon to discover during voir dire that prospective jurors have
preconceived notions, opinions, or misconceptions about the criminal justice system, criminal
trials and procedure, or about the particular case.” Lovos-Rivas, 58 Va. App. at 61 (alteration in
8 Juror R. was ultimately removed via a peremptory strike. “It is prejudicial error for the trial court to force a defendant to use peremptory strikes to exclude a venireman from the jury panel if that person is not free from exception.” Townsend v. Commonwealth, 270 Va. 325, 329 (2005). “The striking of any individual potential juror for cause, however, is committed to the sound discretion of the trial court.” Id. - 11 - original) (quoting Cressell v. Commonwealth, 32 Va. App. 744, 761 (2000)). “The opinion
entertained by a juror, which disqualifies him, is an opinion of that fixed character which repels
the presumption of innocence in a criminal case, and in whose mind the accused stands
condemned already.” Id. (quoting Justus v. Commonwealth, 220 Va. 971, 976 (1980)).
In this case, we conclude that Juror R.’s voir dire, viewed in its entirety, did not
demonstrate that her opinion—that the number of charges appellant faced was indicative of his
guilt—was a fixed opinion. Here, during individual voir dire, Juror R. first unequivocally stated
that she had already set aside her initial reaction to the number of charges faced by appellant.
She later made equivocal statements regarding her initial reaction, stating that she “guess[ed]”
she would have to listen to the evidence, but that the number of charges “kind of would still be in
[her] head.” However, upon the trial court’s questioning, Juror R. made clear that she would be
able to follow the court’s instructions of law, including the instruction that she could only find
appellant guilty based on the law and the evidence. Juror R. stated that she understood the trial
process and would be able to follow the court’s instruction. Overall, these answers indicate that
Juror R.’s initial opinion about appellant’s number of charges indicating his guilt was not fixed.
In addition, we note that “a trial judge who personally observes a juror, including the
juror’s tenor, tone, and general demeanor, is in a better position than an appellate court to
determine whether a particular juror should be str[uck].” Teleguz v. Commonwealth, 273 Va.
458, 475 (2007). Here, the trial court had the ability to listen to Juror R.’s answers and
determine what significance to give to her various statements, including her equivocal answer
that her initial reaction “kind of would still be in [her] head.” (Emphasis added).
Appellant argues, however, that the trial court inappropriately rehabilitated Juror R.
through its questioning of her. “The trial court’s role during the juror’s voir dire also impacts the
extent to which we defer to its judgment.” Keepers, 72 Va. App. at 45. “We recognize that
- 12 - ‘when a trial court itself becomes involved in the rehabilitation of a potential juror, we must
review the court’s decision to retain the person on the panel more carefully.’” Harvey, 76
Va. App. at 456 (quoting Bradbury, 40 Va. App. at 181). “However, the judge may give basic
instructions and ask general clarifying questions as ‘necessary to determine the presence of bias’
in the first instance.” Id. (quoting McGill v. Commonwealth, 10 Va. App. 237, 243 (1990)).
“Such questioning does not constitute rehabilitation.” Id. “If a trial judge adheres to this role, an
appellate court may not set aside the trial judge’s determination of a juror’s impartiality if the
juror’s responses, even though conflicting, support that determination.” Id. (quoting McGill, 10
Va. App. at 243).
In the instant case, after counsel for appellant’s questioning of Juror R., the court gave the
juror a clarifying instruction, informing her that she could only find appellant guilty based on the
evidence and could not infer guilt from the fact that he had been charged with an offense. When
asked by the court if she could “apply that fairly,” she stated, “Yes.” However, rather than
merely providing assent to the court’s questioning, Juror R. further stated, “That is your rule, and
I have to do it the way you say do it.” When the trial court told her that it did not “want to put
words in [her] mouth” and wanted her “to understand that that’s the process,” Juror R. told the
court, “I understand.” “Mere assent to a trial judge’s questions or statements . . . is not enough to
rehabilitate a prospective juror who has initially demonstrated a prejudice or partial
predisposition.” Griffin v. Commonwealth, 19 Va. App. 619, 625 (1995). Evidence of a
venireman’s impartiality “should come from him and not be based on his mere assent to
persuasive suggestions.” Bradbury, 40 Va. App. at 181 (quoting Breeden, 217 Va. at 300). We
conclude that Juror R.’s own responses, which were not merely “yes” answers to the trial court’s
questioning, provided evidence that her initial reaction upon hearing the number of charges
against appellant was not fixed. Rather, she indicated in her own words that she understood the
- 13 - legal instruction regarding the presumption of innocence after being instructed on it and could set
aside her prior opinion.
Contrary to appellant’s assertion, the record demonstrates that the trial court’s
questioning and instruction of Juror R. constituted clarification and not improper rehabilitation.
Accordingly, we conclude that the court did not err in denying appellant’s motion to strike the
juror.
B. Sufficiency of the Evidence
Appellant contends that the trial court erred in denying his motions to strike the evidence
for his charges of unlawfully obtaining DMV documents, making a false statement on an
application for a certificate of title, grand larceny, and money laundering and attempted money
laundering.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
- 14 - “Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v.
Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va.
625, 629 (2009)). “This principle requires us to ‘discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v.
Commonwealth, 221 Va. 492, 498 (1980)).
“To the extent our analysis of the sufficiency of the evidence requires us to examine the
statutory language, we review issues of statutory construction de novo on appeal.” Hillman v.
Commonwealth, 68 Va. App. 585, 592 (2018) (quoting Miller v. Commonwealth, 64 Va. App.
527, 537 (2015)).
1. Unlawfully Obtaining DMV Documents
Code § 46.2-105.2(A) provides
[i]t shall be unlawful for any person to obtain a Virginia driver’s license, special identification card, vehicle registration, certificate of title, or other document issued by the [DMV] if such person has not satisfied all legal and procedural requirements for the issuance thereof, or is otherwise not legally entitled thereto, including obtaining any document issued by the [DMV] through the use of counterfeit, forged, or altered documents.
Appellant argues that the evidence was insufficient to support his convictions under Code
§ 46.2-105.2(A) because there was insufficient evidence of an unlawful act. He contends that
there was no evidence in the record that he did not “satisf[y] all legal and procedural
requirements” to receive title to the vehicles because he met all of the requirements set out in the
AVP at the time of the offense.
Code § 46.2-1200, the definitional section governing Virginia’s AVP, defines an
“[a]bandoned motor vehicle,” in relevant part, as one that “[i]s left unattended on public property
- 15 - for more than 48 hours in violation of a state law or local ordinance.” Code § 46.2-1200(2). As
noted above, to obtain the title to an abandoned vehicle, an applicant must first complete an
application for a record request through the DMV to determine who is the owner or lienholder of
the vehicle. The code section discussing this process directs that “[a]ny person in possession of
an abandoned motor vehicle shall initiate with the [DMV], in a manner prescribed by the
Commissioner, a search for the owner and/or lienholder of record of the vehicle.” Code
§ 46.2-1202(A) (emphasis added). The statutory scheme clearly sets out that to utilize the AVP,
the applicant must be in possession of the abandoned vehicle.
The threshold question here, then, is whether appellant was in possession of the vehicles
for which he obtained titles from the DMV. Code § 46.2-1200 does not provide a definition for
the term “in possession of.” Appellant argues that the word “possession” is ambiguous in this
context because “no person or entity would have keys, title, or a way to control a car left on the
side of the road” and that there is “no obvious way one could inherently or obviously ‘possess’
an abandoned car.” Thus, appellant claims, the only sensible interpretation is that an individual
possesses a vehicle under the statute if the person knows where the vehicle is located and also
knows that the vehicle was abandoned on the side of the road for more than 48 hours, in
violation of a state or local ordinance.9
“We apply the plain meaning of the language appearing in the statute unless it is
ambiguous or applying the plain language leads to an absurd result.” Baldwin v. Commonwealth,
69 Va. App. 75, 82 (2018) (quoting Harvey v. Commonwealth, 65 Va. App. 280, 285 (2015)). A
statute is ambiguous if “the text can be understood in more than one way or refers to two or more
9 Because we conclude that the Commonwealth’s evidence was sufficient to establish that appellant was not in possession of the vehicles, we need not determine whether it established that the vehicles were abandoned on the side of the road for more than 48 hours, in violation of a state or local ordinance. - 16 - things simultaneously” or if “the language is difficult to comprehend, is of doubtful import, or
lacks clearness or definiteness.” Blake v. Commonwealth, 288 Va. 375, 381 (2014) (quoting
Boynton v. Kilgore, 271 Va. 220, 227 n.8 (2006)).
“Where a ‘statute’s terms are undefined’ by the legislature, we give those terms ‘their
“ordinary meaning,” in light of “the context in which [they are] used.”’” Eley v. Commonwealth,
70 Va. App. 158, 165 (2019) (alteration in original) (quoting Va. Marine Res. Comm’n v.
Chincoteague Inn, 287 Va. 371, 384 (2014)). “‘Possession’ is defined as: ‘the act or condition of
having in or taking into one’s control or holding at one’s disposal.’” Shifflett v. Latitude Props.,
Inc., 294 Va. 476, 483 (2017) (quoting Webster’s 3rd International Dictionary 1770 (1993)).
Applying this definition, we conclude that the plain meaning of “possession” in Code
§ 46.2-1202(A) is neither ambiguous nor creates absurd results when applied in the context of
the statute. Rather, under this definition, it is clear that the evidence established that appellant
did not have possession of the vehicles in question. The owners of the vehicles testified that they
did not know appellant, did not give him possession or ownership of their cars, and instead
regularly parked their vehicles themselves during the relevant time period. There is no
indication that anyone but the owners had control of or held at their disposal the vehicles prior to
appellant using the AVP to obtain the vehicles’ titles. Because the vehicles were not in
appellant’s possession, he was not entitled to use the AVP to obtain their titles. Thus, it is clear
that appellant obtained the titles from the DMV without “satisfy[ng] all legal and procedural
requirements for the issuance thereof,” or “otherwise [being] legally entitled thereto,” in
violation of Code § 46.2-105.2(A).10
10 In his argument asserting that he lawfully followed the AVP, appellant emphasizes that on the 2018 online record request application, the AVP option for vehicles on public property was available to be selected by private individuals as well as local governments. He contends that this means that he, as a private individual, could possess a vehicle on public property in the same way as a local government—finding the vehicle on the street and determining that it was in - 17 - 2. Making a False Statement on an Application for a Certificate of Title
Code § 46.2-605 provides that “[a]ny person who . . . with fraudulent intent, makes a
false statement on any application for a certificate of title . . . shall be guilty of a Class 6 felony.”
Appellant first argues that the evidence did not establish that his applications contained
false information. He asserts that while the evidence at trial might have been sufficient to prove
that he made false statements to DMV employees, it did not demonstrate that he made false
statements on the actual applications for certificate of title.
Appellant supports his contention by noting that the application for certificate of title
itself does not ask whether the applicant is in possession of the vehicle for which title is sought.
But although this is true, the application’s certification section makes an applicant certify that
“all information presented in this form is true and correct, that any documents . . . presented to
DMV are genuine, and that the information included in all supporting documentation is true and
accurate.” Here, appellant’s supporting documentation included his record request receipts and
vehicle removal certificates. Both documents require an applicant to state who is in possession
of the vehicle. The online record request application requires the applicant to state that they are
in “possession of [the] motor vehicle” and indicate a reason for their possession. Appellant listed
his reason for possession of the vehicles as “possession of a motor vehicle . . . that was left
unattended on public property for more than 48 hours in violation of a state law or local
ordinance.” The vehicle removal certificate also requires an applicant to state the name of the
violation of a state law or local ordinance. However, the fact that the DMV website was set up for individuals to use the AVP for vehicles on public property does not mean that the statutory scheme itself allowed for private individuals to use the AVP in that way. At the time of the offense, Code § 46.2-1201 provided that “[a]ny county, city, or town may take any abandoned motor vehicle into custody.” Accordingly, by statute, a local government had the authority to take an abandoned vehicle into its possession, but nothing in the statute established that the statute conferred to private individuals a right to take possession of an abandoned vehicle on public property. - 18 - “person/authorized agent in possession of vehicle,” and appellant put his name on these forms as
the person in possession of the vehicles.
Appellant provided the false information that he was in possession of the vehicles on both
the online record request applications and the vehicle removal certificates. Because appellant
provided false information on his supporting documentation, while certifying on the applications
for certificate of title that his supporting documentation was true and accurate, the evidence
established that he provided false information on his applications for certificate of title.11
Appellant further argues that there was insufficient evidence of the fraudulent intent
necessary for his convictions under Code § 46.2-605. He contends that the fact that he made no
effort to hide his identity on the forms was evidence of his good faith belief that he was correctly
following the AVP and therefore demonstrated his lack of intent to defraud anyone.
A person acts with fraudulent intent when he acts “with an evil intent, or with the specific
intent to deceive or trick.” Burrell v. Commonwealth, 50 Va. App. 72, 86 (2007) (quoting
Campbell v. Commonwealth, 14 Va. App. 988, 990 (1992) (en banc)). “Intent may, and most
often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from
proven facts are within the province of the trier of fact.” Sarka v. Commonwealth, 73 Va. App.
56, 67 (2021) (quoting Fleming v. Commonwealth, 13 Va. App. 349, 353 (1991)). “In
determining a defendant’s intent, ‘[c]ircumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.’” Id. (alteration in original) (quoting Coleman v.
11 On the same basis, appellant also challenges his convictions under Code § 46.2-105.2(A) for unlawfully obtaining DMV documents—that he did not provide incorrect information while using the AVP. However, as we conclude for his convictions under Code § 46.2-605, appellant provided the false information that he was in possession of the vehicles when he applied for titles to the vehicles via the AVP, and thus he obtained these titles without “satisfy[ing] all legal and procedural requirements for the issuance thereof,” in violation of Code § 46.2-105.2(A). - 19 - Commonwealth, 226 Va. 31, 53 (1983)). “[T]he conduct and representations of the defendant”
are circumstances to consider in deciding whether fraudulent intent exists in a particular case,
and “[w]hether fraud actually existed will depend upon the circumstances of each case.” Rader
v. Commonwealth, 15 Va. App. 325, 329 (1992) (quoting Norman v. Commonwealth, 2 Va. App.
518, 519, 520 (1986)). In addition, “[t]he statements and conduct of an accused after the events
that constitute the charged crime may also be relevant circumstantial evidence of intent.” Simon
v. Commonwealth, 58 Va. App. 194, 206 (2011). “[W]hether the required intent exists is
generally a question of fact for the trier of fact.” Brown v. Commonwealth, 68 Va. App. 746, 787
(2018) (alteration in original) (quoting Nobles v. Commonwealth, 218 Va. 548, 551 (1977)).
Here, the conduct and representations of appellant plainly indicate his fraudulent intent in
making false statements on his applications for certificate of title. He claimed on several forms
that he was in possession of the vehicles when the evidence demonstrated that the owners of the
vehicles did not know appellant and did not give him permission to control or have at his
disposal the vehicles in any manner. He also verbally misrepresented where the vehicles were
located when he provided his paperwork to the DMV. He told two DMV employees that the
vehicles were located on his property, instead of on public property, in an effort to conceal the
fact that he was trying to use the AVP to gain title to vehicles not in his possession.12 In
12 Appellant argues that the trial court erred in admitting his verbal statements to the DMV employees. “The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Warnick v. Commonwealth, 72 Va. App. 251, 263 (2020) (quoting Amonett v. Commonwealth, 70 Va. App. 1, 9 (2019)). Evidence is relevant if it has “any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.” Va. R. Evid. 2:401. Appellant contends that because Code § 46.2-605 criminalizes only “false statement[s] on any application for a certificate of title,” his verbal statements to the DMV employees were irrelevant and therefore inadmissible. However, the fact that appellant lied to two different DMV employees regarding the location of vehicles for which he sought title was relevant to show his fraudulent intent, because it demonstrated his intent to conceal the fact that he was not actually in possession of the vehicles and therefore was using the AVP unlawfully. - 20 - addition, appellant used the AVP five times to obtain titles to the vehicles. Evidence that the
accused “perpetrated more than one fraud [at] about the same time is relevant to show his
fraudulent intent.” Mughrabi v. Commonwealth, 38 Va. App. 538, 546 (2002); see also
Bourgeois v. Commonwealth, 217 Va. 268, 273 (1976) (“[W]here an accused has perpetrated
similar frauds and by false representation obtained valuable consideration, evidence of such acts
has been held to be admissible as bearing on fraudulent intent.”). While appellant notes that he
did not attempt to conceal his identity on the applications for certificate of title, this fact alone
does not negate the other evidence in the record indicating his fraudulent intent in his use of the
AVP. Accordingly, based upon appellant’s written and verbal representations, and the number
of offenses he committed during a short period of time, we conclude that the evidence is
sufficient to prove that he had the fraudulent intent necessary for his convictions under Code
§ 46.2-605.13
13 On the same ground, appellant also challenges his convictions under Code § 46.2-105.2(A) for unlawfully obtaining DMV documents—he argues that he lacked the requisite fraudulent intent necessary for a conviction under that code section. On brief, the Commonwealth argues that intent to defraud is not an element under Code § 46.2-105.2(A), noting that the jury instructions in this case only listed intent to defraud as an element for appellant’s violations of Code § 46.2-605. We conclude that the best and narrowest ground for resolving this issue is to assume without deciding that even if Code § 46.2-105.2(A) contains an intent to defraud element, it was satisfied in this case by appellant’s conduct showing his fraudulent intent as described above. See Ali v. Commonwealth, 75 Va. App. 16, 37 n.9 (2022) (noting that “[t]he doctrine of judicial restraint requires that appellate courts decide cases on the best and narrowest ground” and that “[t]he mechanism of assuming without deciding a particular point in issue sometimes facilitates the appellate court’s achievement of this goal”). - 21 - 3. Grand Larceny
Appellant argues that the evidence was insufficient to support his three grand larceny
convictions14 because there was insufficient evidence of a taking against the will or without the
consent of the owner.
“Larceny, a common law crime, is the wrongful or fraudulent taking of another’s
property without his permission and with the intent to deprive the owner of that property
permanently.” Tarpley v. Commonwealth, 261 Va. 251, 256 (2001). For statutes contained in
Title 46.2, “owner” is defined as “a person who holds the legal title to a vehicle.” Code
§ 46.2-100; see also McDuffie v. Commonwealth, 49 Va. App. 170, 175-76 (2006) (“[C]ertificate
of title serves not only as a substitute recording system but also as evidence of ownership.”).
Appellant asserts that because the vehicles were taken after he obtained titles to them,
they were not taken without their owners’ permission, as he was their owner after obtaining the
titles. We reject appellant’s argument and conclude that because his titles to the vehicles were
procured through his fraudulent actions, they did not convey legal title to him. Appellant’s
fraudulent use of the AVP to obtain the vehicles’ titles was the first part of his larcenous scheme
to deprive the rightful owners of their vehicles. He committed an initial larceny in obtaining the
titles themselves—he used the AVP to fraudulently take another’s property, namely the titles to
the vehicles that were issued to him by the DMV but which legally belonged to the vehicles’ true
owners. He then committed the charged larcenies of the three vehicles themselves, physically
taking the vehicles from the streets and later attempting to sell two of them at auction. In
Virginia, “a thief takes no title in the property he steals and can transfer none.” Castle Cars, Inc.
v. U.S. Fire Ins. Co., 221 Va. 773, 778 (1981); see also Toyota Motor Credit Corp. v. C.L.
14 Appellant was convicted of grand larceny for the 2009 Mini Cooper, the 2016 Mini Cooper, and the 2012 Toyota Camry, the three vehicles which were stolen in the City of Richmond. - 22 - Hyman Auto Wholesale, Inc., 256 Va. 243, 247 (1998) (“Longstanding Virginia law provides
that one who does not have title to goods cannot transfer title to a buyer . . . . Thus, a thief
cannot pass title to stolen goods even to an innocent purchaser who pays for the stolen goods.”
(citation omitted)). Because he obtained the titles and vehicles through his larcenous actions, at
the time he took the vehicles, appellant did not have “legal title” to them. Code § 46.2-100
(emphasis added). He merely had the physical certificates of title. Accordingly, he was not the
owner of the vehicles at the time he stole them and the evidence was sufficient to support his
larceny convictions.
4. Money Laundering Offenses
Code § 18.2-246.3(A) makes it “unlawful for any person knowingly to conduct a
financial transaction where the person knows the property involved in the transaction represents
the proceeds of an activity which is punishable as a felony.” In turn, Code § 18.2-246.2 defines a
“financial transaction” as
any purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, transportation, delivery, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, purchase or sale of monetary instruments, use of a safe-deposit box, or any other acquisition or disposition of monetary instruments by any means including the movement of funds by wire or other electronic means, which is knowingly designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property involved in the transaction.
Appellant argues that a financial transaction under Code § 18.2-246.2 must involve the
“acquisition or disposition of monetary instruments” and that here the Commonwealth did not
present sufficient evidence of a financial transaction, as it failed to present any evidence about an
exchange of money.
Assuming without deciding that a financial transaction under the statute must involve the
acquisition or disposition of monetary instruments, we reject appellant’s contention that in this - 23 - case, the Commonwealth’s evidence failed to establish that such a financial transaction occurred.
Tolliver testified that he “enter[ed] an agreement to auction vehicles on behalf” of appellant and
“ha[d] an agreement to pay [appellant] the money.” The 2009 Mini Cooper was sold at auction
and Tolliver received about $4,800 for the vehicle. He did not actually give any of the proceeds
to appellant because the second car for auction, the 2016 Mini Cooper, was identified as stolen.
While appellant did not receive money from Tolliver, this is not dispositive as to whether
a financial transaction occurred. Code § 18.2-246.3(A) makes it “unlawful for any person
knowingly to conduct a financial transaction where the person knows the property involved in
the transaction represents the proceeds of an activity which is punishable as a felony.”
(Emphasis added). Code § 18.2-246.2 defines “conduct” as including “initiating, concluding,
participating in, or assisting in a financial transaction.” Appellant initiated a financial transaction
with Tolliver. He made an agreement with Tolliver to sell the vehicles, and Tolliver received
money in exchange for auctioning the 2009 Mini Cooper. While appellant did not receive any
money as a result of his agreement, he did initiate the transaction, thus we could conclude that
the evidence was sufficient to prove that he conducted a financial transaction in this case.
Appellant also argues that there was insufficient evidence of an attempt to conceal or
disguise the ownership of the property involved. Code § 18.2-246.2 requires that the financial
transaction be one “which is knowingly designed in whole or in part to conceal or disguise the
nature, location, source, ownership or control of the property involved in the transaction.”
Appellant asserts that the evidence demonstrated that he did not hide what he was doing, as he
titled all of the vehicles in his own name, went to the DMV in person, and directly transferred the
vehicles from his name to Tolliver.
In resolving this issue, we find instructive the federal cases interpreting the federal money
laundering statute. Similar to Code § 18.2-246.2, a violation of 18 U.S.C. § 1956, the federal
- 24 - money laundering statute, occurs when a defendant conducts a financial transaction “knowing
that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of specified unlawful activity.”
18 U.S.C. § 1956(a)(1)(B)(i). In a prosecution under this statute, the government must prove “a
specific intent to structure a transaction so as to conceal the true nature of the proceeds.” United
States v. Gilliam, 975 F.2d 1050, 1056 (4th Cir. 1992). “A conviction requires evidence of intent
to disguise or conceal the transaction, whether from direct evidence, like the defendant’s own
statements, or from circumstantial evidence, like the use of a third party to disguise the true
owner, or unusual secrecy.” United States v. Cruzado-Laureano, 404 F.3d 470, 483 (1st Cir.
2005). “The ‘most obvious type’ of evidence that would support a finding of intent to disguise
the proceeds of unlawful activity is ‘that of employing a third party in order to conceal the
defendant’s identity from others.’” United States v. Marshall, 248 F.3d 525, 539 (6th Cir. 2001)
(quoting United States v. Lovett, 964 F.2d 1029, 1034 n.3 (10th Cir. 1992)).
We find the principles articulated above applicable to this case and conclude that the
evidence was sufficient to establish appellant’s intent to conceal or disguise the source of the
property involved. Here, appellant entered into an agreement with Tolliver to auction the two
vehicles and signed over the titles of both vehicles to him. By employing a third party to sell the
vehicles at auction, appellant demonstrated his intent to structure the transaction so as to conceal
the true source of the property involved in the transaction. While it was relatively easy to trace
the vehicles back to appellant, “the money laundering statute does not require the jury to find
that [accused] did a good job of laundering the proceeds.” United States v. Sutera, 933 F.2d 641,
648 (8th Cir. 1991). In the instant case, appellant’s use of Tolliver, a third party, constituted
sufficient evidence to show that the transaction was designed in whole or in part to conceal or
disguise the source of the property involved in the transaction.
- 25 - Further, the evidence regarding appellant’s acts in relation to the 2016 Mini Cooper was
sufficient to support his attempted money laundering conviction. “Whether the actions of a
particular defendant rise to the level of an attempted crime is a fact-specific inquiry that must be
decided on a case-by-case basis.” Ashford v. Commonwealth, 47 Va. App. 676, 681 (2006). “An
attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a
direct, ineffectual act done towards its commission.” Fletcher v. Commonwealth, 72 Va. App.
493, 506 (2020) (quoting Haywood v. Commonwealth, 20 Va. App. 562, 565 (1995)). “The
direct but ineffectual act is commonly referred to as an ‘overt act.’” Jones v. Commonwealth, 70
Va. App. 307, 318 (2019) (en banc) (quoting Jay v. Commonwealth, 275 Va. 510, 525 (2008)).
Appellant’s intent to commit the offense was evidenced by his agreement to sell the vehicles, the
proceeds of his grand larcenies, at auction via Tolliver. His signing over the title and giving the
vehicle to Tolliver was the direct act done toward the commission of the offense that was only
ineffectual because the 2016 Mini Cooper was identified as stolen.
Accordingly, because the evidence established that appellant conducted a financial
transaction designed to conceal the source of the 2009 Mini Cooper and that he attempted to do
so for the 2016 Mini Cooper, we conclude that the trial court did not err in finding the evidence
sufficient to support both convictions.15
15 Appellant also argues that his actions did not constitute money laundering or attempted money laundering because he did not know that the property involved in the transaction represented the proceeds of a felonious activity. Code § 18.2-246.3 provides that it is “unlawful for any person knowingly to conduct a financial transaction where the person knows the property involved in the transaction represents the proceeds of an activity which is punishable as a felony.” (Emphasis added). Appellant argues that the record demonstrates that he believed his use of the AVP was entirely legal. We reject appellant’s argument, which is belied by appellant’s fraudulent statements on the AVP documents concerning possession of the vehicles and his misrepresentations to the DMV employees about the locations of the vehicles. - 26 - C. Jury Instructions
Appellant argues that he was entitled to instructions on a good faith claim-of-right
defense and a good faith reliance defense.
“As a general rule, the decision to grant or deny proffered instructions rests within the
sound discretion of the trial court.” Sarafin v. Commonwealth, 288 Va. 320, 325 (2014). Our
“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.’” Conley v.
Commonwealth, 74 Va. App. 658, 674-75 (2022) (quoting Fahringer v. Commonwealth, 70
Va. App. 208, 211 (2019)). “[W]hether a jury instruction accurately states the relevant law is a
question of law that we review de novo.” Watson v. Commonwealth, 298 Va. 197, 207 (2019)
(quoting Payne v. Commonwealth, 292 Va. 855, 869 (2016)).
“[W]hen reviewing a trial court’s refusal to give a proffered jury instruction, we view the
evidence in the light most favorable to the proponent of the instruction.” Dandridge v.
Commonwealth, 72 Va. App. 669, 676 (2021) (quoting Lienau v. Commonwealth, 69 Va. App.
254, 260 (2018)). A trial court “may not refuse to grant a proper, proffered instruction” if there
is more than “a scintilla” of evidence supporting the instruction. Id. at 680 (quoting King v.
Commonwealth, 64 Va. App. 580, 587 (2015) (en banc)). “Whether there is more than a mere
scintilla of evidence is determined on a case-by-case basis.” Jones v. Commonwealth, 71
Va. App. 70, 94 (2019). “If the instruction is not applicable to the facts and circumstances of the
case, it should not be given.” Commonwealth v. Sands, 262 Va. 724, 729 (2001). “Thus, it is not
error to refuse an instruction when there is no evidence to support it.” Id.
“A jury must be instructed on any theory or affirmative defense supported by the
evidence.” McCoy v. Commonwealth, 9 Va. App. 227, 229 (1989). This Court must decide
- 27 - whether the evidence when viewed in the light most favorable to the defendant’s theory required
the requested instruction. Id.
1. Claim-of-Right Defense
Appellant asked the trial court to instruct the jury on a good faith claim-of-right defense
in relation to the three grand larceny offenses. His proposed instruction stated, “If you find that
[appellant], in good faith, believed that the [vehicle] belonged to him at the time of the taking
then you shall find [appellant] not guilty of grand larceny.” After noting that none of the
witnesses had testified that they had allowed appellant to take their vehicles, the trial court asked
counsel for appellant for the basis for the instruction. Counsel for appellant stated that “there is
at least a scintilla of evidence here” because appellant “received title.”
“[T]here can be no larceny of the property taken if it, in fact, is the property of the taker,
or if he, in good faith, believes it is his, for there is lacking the criminal intent which is an
essential element of larceny.” Pena Pinedo v. Commonwealth, 300 Va. 116, 122 (2021)
(alteration in original) (quoting Butts v. Commonwealth, 145 Va. 800, 811-12 (1926)). “When
successful, a claim-of-right defense negates the defendant’s animus furandi—the ‘intent to steal’
mens rea element of larceny.” Groves v. Commonwealth, 50 Va. App. 57, 63 (2007) (quoting
Rollin M. Perkins, Criminal Law 265-66, 271 (2d ed. 1969)). “The claim-of-right defense
requires a predicate showing of ‘good faith,’ a bona fide belief by the taking party that []he has
some legal right to the property taken.” Id. (quoting Butts, 145 Va. at 812). “A claim-of-right
defense may be based on a good faith, yet mistaken, claim to property.” Pena Pinedo, 300 Va. at
122. “Any claim of right underlying the defense, however, must be sincere and not merely a
dishonest pretense.” Id. “Where the evidence is conflicting the question of bona fides is for the
trier of the facts.” Groves, 50 Va. App. at 63 (quoting Pierce v. Commonwealth, 205 Va. 528,
534 (1964)). However, while “[u]sually the question of bona fides is one for the jury, . . .
- 28 - where . . . the facts are undisputed, and only one conclusion could be fairly drawn therefrom by
reasonable men, it is a question of law for the court.” Pena Pinedo, 300 Va. at 122 (quoting
Butts, 145 Va. at 814).
Appellant asserts that there was evidence in this case showing the basis for appellant’s
good faith belief that he was entitled to the vehicles—he found the AVP, a legitimate process
through the DMV, utilized that process, and subsequently received titles to the vehicles from the
DMV. Therefore, he contends that the trial court should have left the question of whether this
belief was reasonable to the jury and given the instruction.
We disagree and conclude appellant’s actions did not demonstrate a “good faith, yet
mistaken, claim to property.” Pena Pinedo, 300 Va. at 122. Appellant did not have a good faith
belief that he owned the vehicles at issue because his obtaining of their titles was predicated on
his fraudulent statements on the AVP documents that he was in possession of the vehicles. He
could not have sincerely believed that he was in possession of the vehicles at the time he
completed the applications for certificates of title because the vehicles were located on public
streets and were regularly parked there by their true owners. All of the owners testified that they
did not give appellant permission to use or take their vehicles. Further, appellant’s
misrepresentations to the DMV employees that the vehicles were located on his private property
contradicts his argument that he acted on a sincere belief, rather than a dishonest pretense. Thus,
while a jury instruction should be given if there is more than “a scintilla” of evidence supporting
the instruction, “it is not error to refuse an instruction when there is no evidence to support it.”
Sands, 262 Va. at 729. The trial court did not err in refusing to instruct the jury on a good faith
- 29 - claim-of-right defense when there was no reasonable basis for appellant to believe that the
vehicles, located on public streets, were possessed by him.16
2. Good Faith Reasonable Reliance Defense
Appellant also asked the trial court to instruct the jury on a good faith reliance defense,
pursuant to Miller v. Commonwealth, 25 Va. App. 727 (1997), for the unlawfully obtaining
documents from the DMV charges. Counsel for appellant told the court that the basis for giving
such an instruction was that “the evidence we have in this case [was] that [appellant] was
informed it was lawful . . . off of the Virginia Code and the DMV website and the guidance on
the website.” When asked by the court what evidence was presented as to whether appellant was
given assurance that what he was doing was legal, counsel for appellant said, “certainly we
didn’t present affirmative evidence in the way of [appellant]’s testimony or testimony from a
witness that they made a specific verbal assurance,” but that there was “a scintilla of evidence in
the fact that he was given the titles physically, that that is essentially the assurance I am
arguing.” The court refused the instruction, noting that it thought “it is misleading of the law in
the case” and that “more importantly, there is no affirmative evidence provided in accordance
with Miller.”
The due process defense articulated in Miller is one where “the criminal statute under
which the defendant is being prosecuted cannot constitutionally be applied to the defendant
without violating due process of law, where government officials have misled the defendant into
believing that his conduct was not prohibited.” Miller, 25 Va. App. at 736 (quoting Jeffrey F.
16 Appellant also asserts that the evidence was insufficient to support his grand larceny convictions because he had a good faith claim-of-right to the vehicles and therefore lacked the necessary intent to support these convictions. Appellant maintains that once he obtained the titles to the vehicles, he had a reasonable, good faith belief that he legally owned them. As we determine above, appellant only obtained the titles through his fraudulent use of the AVP and therefore could not have had a good faith belief in his ownership of the vehicles, despite the fact that the DMV had issued the titles to him. - 30 - Ghent, Annotation, Criminal Law: “Official Statement” Mistake of Law Defense, 89 A.L.R.4th
1026, 1031 (1991)). “To avail oneself of this due process ‘defense,’ a defendant must prove
three things.” Park v. Commonwealth, 74 Va. App. 635, 652 (2022). First, he must establish
“that he was assured that the conduct giving rise to the conviction was lawful.” Branch v.
Commonwealth, 42 Va. App. 665, 671 (2004). Second, the defendant must demonstrate “that the
assurance was given by a ‘government official,’ i.e., ‘a public officer or body charged by law
with responsibility for defining permissible conduct with respect to the offense at issue.’” Id.
(quoting Miller, 25 Va. App. at 739). Third, he must prove “that, based on the totality of the
circumstances, reliance upon the advice was reasonable and in good faith.” Id. “[I]t is the
defendant’s burden to establish this ‘affirmative defense.’” Id. (quoting Miller, 25 Va. App. at
737).
Based on this record, we need only examine the first prong of this test. We conclude that
the evidence clearly showed that appellant failed to receive assurances from DMV employees
that his use of the AVP was lawful. “With respect to content, the defense is available only where
the information upon which the defendant has relied is an affirmative assurance that the conduct
giving rise to the conviction is lawful.” Miller, 25 Va. App. at 738. “In the absence of such an
affirmative assurance,” therefore, “the due process concerns that the defense is designed to
protect are not implicated, and the defense fails.” Id.
Appellant argues that a Miller instruction should have been provided to the jury for the
unlawfully obtaining documents from the DMV offenses. Here, the conduct giving rise to those
convictions was appellant’s statements on the AVP documents that he was in possession of the
five vehicles at issue. Appellant asserts that he received affirmative assurances from the DMV
that he appropriately used the AVP through the acceptance of his paperwork and issuance of title
to each of the cars. But the mere acceptance of paperwork and the issuance of the titles does not
- 31 - qualify as an affirmative assurance that the conduct giving rise to his convictions was lawful. Cf.
Claytor v. Commonwealth, 62 Va. App. 644, 655-56 (2013) (holding that the Miller defense did
not apply where the defendant subjectively interpreted a court order to have reinstated his driving
privileges because the defendant “sought no determination of conduct,” and therefore “the court
had no occasion to give an ‘affirmative assurance’ that such conduct was permissible”).
Appellant did not receive an affirmative assurance on the lawfulness of his use of the AVP from
any DMV employee. This was in fact conceded by counsel for appellant at trial when she stated,
“certainly we didn’t present affirmative evidence in the way of [appellant]’s testimony or
testimony from a witness that they made a specific verbal assurance.” Because there was not
more than a scintilla of evidence supporting appellant’s claim that he was assured that the
conduct giving rise to the convictions was lawful, we conclude that the trial court did not err in
refusing to give a Miller instruction.
- 32 - III. CONCLUSION
We hold that the trial court did not err in failing to strike a juror for cause, in denying
appellant’s motions to strike the evidence, or in denying jury instructions on good faith claim-of-
right and good faith reasonable reliance. Accordingly, we affirm.17
Affirmed.
17 Appellant finally argues that the trial court erred in not setting aside the jury’s verdict because Virginia’s AVP statutes are void for vagueness. We do not address this argument on appeal because appellant failed to obtain a ruling from the trial court on this issue. “It is the appellant’s burden ‘to obtain a clear ruling from the [circuit] court’ on an issue he wishes to raise on appeal. This burden stems from the requirement that a litigant state an objection ‘with reasonable certainty at the time of the ruling.’” McDaniel v. Commonwealth, 73 Va. App. 299, 313 (2021) (first quoting Young v. Commonwealth, 70 Va. App. 646, 657 (2019); and then quoting Rule 5A:18). On September 20, 2021, appellant filed a pro se handwritten motion to set aside his convictions where he argued in part that the AVP statutes are void for vagueness. The sentencing order, entered October 1, 2021, does not address appellant’s pro se motion. On December 20, 2021, appellant filed a pro se motion asking the trial court to hear his pro se motion to set aside. While appellant did file a motion asking the trial court to hear his motion to set aside, it was filed more than 21 days following the entry of the sentencing order in this case, and therefore the trial court had already lost jurisdiction over the convictions. See Rule 1:1. Because there was no ruling on appellant’s void-for-vagueness argument in the trial court, this issue was not preserved for appellate review. See Westlake Legal Grp. v. Flynn, 293 Va. 344, 352 (2017) (holding that assignments of error were not preserved for appeal where the arguments they contained were first made in a motion to reconsider and the record contained no indication that a hearing was requested or that the motion was heard or decided). - 33 -
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Cite This Page — Counsel Stack
Ronald Dean Northcraft v. Commonwealth of Virginia, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-dean-northcraft-v-commonwealth-of-virginia-vactapp-2023.