Shropshire v. Commonwealth

577 S.E.2d 521, 40 Va. App. 34, 2003 Va. App. LEXIS 122
Court of Appeals of Virginia·Decided March 11, 2003·No. 0382023·Published·Cited by 22 cases

Opinions

AGEE, Judge.

Matthew Shropshire (“Shropshire”) was convicted in a bench trial in the Circuit Court of the City of Lynchburg on one count of grand larceny by false pretenses. On appeal [37] Shropshire alleges that the evidence was insufficient to establish all the elements necessary to prove grand larceny by false pretenses. For the following reasons, we reverse the conviction.1

I. BACKGROUND

On May 16, 2001, Shropshire looked at a Ford Taurus in the inventory of Oakridge Toyota and told salesman Michael Stanley that he would buy the car “with a check he was going to get from his credit union.” The record does not reflect the parties reached an agreement as to the purchase price of the car. Marshall Wilson, the finance manager, then assisted Shropshire in filling out “a Buyer’s Order, Odometer Statement, the standard documents.” None of these documents are in the record, nor is there any description of their terms or if these documents were executed by Shropshire. Wilson testified he “filled out” the documents “in expectation that he [Shropshire] would come back and purchase it.” Stanley testified that because Shropshire had previously purchased a car from him, he gave Shropshire possession of the Taurus on May 16, 2001, based on his representation that he would return with a credit union check because he had “signed all the paperwork” and “purchased the vehicle.” No “paperwork” is in the record, nor is there a description of its terms.

On May 23, 2001, the manager of Oakridge Toyota received a check from Shropshire which he left in Marshall Wilson’s desk drawer. Nothing appears on the face of the check to denote its purpose. The check was payable to Oakridge Toyota in the amount of $4,200 and was drawn on an account at Carolina Federal Credit Union, Myrtle Beach, South Carolina. Oakridge Toyota was later notified that the check could not be cashed and was “returned unpaid insufficient funds.” [38] The record indicates “at some point the car was returned,” but does not specify when or by whom.

Shropshire was charged in an indictment with grand larceny by false pretenses from Oakridge Toyota in violation of Code § 18.2-178. At trial, the $4,200 check was introduced into evidence. The Commonwealth then sought to prove Carolina Federal Credit Union did not exist and the check was therefore fraudulent. To do so the Commonwealth offered an affidavit from Joe Ostrowidzki, the Acting Director of Insurance of Region III of the National Credit Union Administration (“NCUA”). Over Shropshire’s objection, the trial court admitted the affidavit into evidence.

Mr. Ostrowidzki certified in the affidavit that he is the custodian of all NCUA records for federally chartered and/or insured credit unions in the state of South Carolina. He also certified that a review of those records showed that Carolina Federal Credit Union was neither federally insured nor chartered at any time in 2001.

The trial court convicted Shropshire of obtaining the Taurus by false pretenses from Oakridge Toyota in violation of Code § 18.2-178. Shropshire now appeals to this Court.

II. STANDARD OF REVIEW

When considering the sufficiency of the evidence on appeal in a criminal case, this Court views the evidence in the light most favorable to the Commonwealth (as the prevailing party in the trial court), granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court does not substitute its own judgment for that of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court’s judgment will not be set aside unless it appears that the judgment is plainly wrong or without supporting evidence. See Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

[39] III. ANALYSIS

Shropshire asserts that the evidence was insufficient to establish all the requisite elements of the offense of grand larceny by false pretenses. We agree.

In order to sustain a conviction for larceny by false pretenses the Commonwealth must prove the following elements:

“(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) (citation omitted). In addition to the elements above, “ ‘[a]n essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant (or his nominee).’ ” Baker v. Commonwealth, 225 Va. 192, 194, 300 S.E.2d 788, 788 (1983) (quoting Cunningham v. Commonwealth, 219 Va. 399, 402, 247 S.E.2d 683, 685 (1978)). “The gravamen of the offense ... is the obtainment of ownership of property, by false representations or pretenses.” Quidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622, 625 (1981). Assuming, arguendo, that the Commonwealth’s evidence proved all other elements of the crime, the record does not contain evidence that Shropshire acquired any type of ownership interest in the Taurus.

In Lewis v. Commonwealth, 28 Va.App. 164, 503 S.E.2d 222 (1998), this Court held that the defendant acquired a sufficient property interest to support his conviction for larceny by false pretenses by receipt of a temporary certificate of ownership. The Commonwealth argues that the issuance of a temporary certificate of ownership was not necessary to support the holding in Lewis and was not required in [40] this case to prove the requisite element of ownership.2

We agree that ownership or title sufficient to support a conviction under Code § 18.2-178 regarding a motor vehicle, could be proven by evidence other than a temporary certificate of ownership or other state issued muniment of title as under Code § 46.2-628. However, the record in this case does not contain such evidence.

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Shropshire v. Commonwealth, 577 S.E.2d 521, 40 Va. App. 34, 2003 Va. App. LEXIS 122 (Va. Ct. App. 2003).

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577 S.E.2d 521 (Court of Appeals of Virginia, 2003)