Virginia Lawyer Explains VA Law of False Pretenses, Forgery, Uttering and Fraud

WHAT IS THE CRIME OF OBTAINING MONEY BY FALSE PRETENSES IN VIRGINIA?

False Pretense is the crime charged when money or ownership of property is obtained from a person by intentional misrepresentation, trick, or lying. The most commonly charged False Pretense crime occurs when individuals receive cash in exchange for fake or fraudulent checks at “Checks Cashed” businesses. Obtaining money from individuals and businesses based on fake receipts is another example.

These crimes are punished under VA Code 18.2-178. The code reads: “If 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; or if he obtain, by any false pretense or token, with such intent, the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony.”

Whether you are charged with a felony or a misdemeanor depends on the value of the amount defrauded ($200 and more is a felony, less than that is a misdemeanor). If a signature is obtained under false pretenses, the crime would be a felony due to it being a forgery.

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WHAT IS CRIMINAL FRAUD?

The common factor in fraud crimes is deceit or lying. Fraud occurs when you knowingly misrepresent the truth, or conceal a fact, to cause someone to do something they would not have done but for the misrepresentation or concealment. It’s basically stealing by lying.

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BAD CHECK LAW / ISSUING BAD CHECKS / CHECK FRAUD / CHECK LARCENY

If you know that you have insufficient funds with the bank, or if you have bad credit with the bank, but you write or issue a check anyway intending to defraud someone, that check is evidence of a crime. Same goes for money orders and other drafts. Virginia VA Code Section 18.2-181 punishing issuing bad checks as a larceny, under the larceny misdemeanor/felony distinction. The particular conduct that is prohibited by the code is: “make or draw or utter or deliver.”

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FORGERY

Forging documents is a type of fraud, with an added element of making or creating, or, altering or changing, a document, contract, check, money, or even coin, to use as the real or genuine item. Having the forged item in possession with intent to use it, and actually making the forgery, are equally punished under Virginia VA Code Section 18.2-171 as a Class 4 felony. Virginia, in reality, punishes you for the existence of the forgery. Virginia also has multiple code sections that each punish particular types of forgery as a Class 4 felony, including: 18.2-168. Forging public records, etc.; 18.2-169. Forging, or keeping an instrument for forging, a seal; 18.2-170. Forging coin or bank notes; 18.2-171. Making or having anything designed for forging any writing, etc. All of these crimes are punishable by prison for a time period not to be less then 2 years and not more than 10 years, with a maximum fine of $100,000.00.

Actually offering the forged writing in actual sales, or uttering it to another, or simply attempting to use the writing in commerce or purchase or some exchange, is punishable under Virginia VA Code Section 18.2-172 as a Class 5 felony. The punishment for Class 5 felonies is a prison sentence for up to 10 years, with as much as a $2,500.00 fine.

Possessing forged coin or bank notes, 10 or more units in quantity, is punishable under Virginia VA Code Section 18.2-173 as a Class 6 felony, punishable by up to 5 years in prison and up to a $2,500.00 fine. Possessing fewer than 10 forged coin or bank notes is a Class 3 misdemeanor, which is punishable by a fine under $500.00. Virginia has a few other forgery misdemeanor offenses, which include: forging someone else’s signature without that person’s permission, which is punished under Virginia VA Code Section 18.2-172.2 as a Class 1 misdemeanor, with a maximum penalty of 1 year in jail with a $2,500.00 fine; and, falsifying or altering and fraudulently using transcripts or diplomas for financial gain or educational advancement, which is punished under Virginia VA Code Section 18.2-172.1 as a Class 3 misdemeanor, which is punishable by a fine under $500.00.

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IDENTITY THEFT CHARGES

Virginia law criminalizes the use, distribution, and sale of identifying information of another person without their permission. Identifying information is explained as (but not limited to):
(i) name; (ii) date of birth; (iii) social security number; (iv) driver’s license number; (v) bank account numbers; (vi) credit or debit card numbers; (vii) personal identification numbers (PIN); (viii) electronic identification codes; (ix) automated or electronic signatures; (x) biometric data; (xi) fingerprints; (xii) passwords; or (xiii) any other numbers or information that can be used to access a person’s financial resources, obtain identification, act as identification, or obtain money, credit, loans, goods or services.

Virginia VA Code Section 18.2-186.3 specifically names the following intentional acts as identity theft:
1. Obtain, record or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
2. Obtain money, credit, loans, goods or services through the use of identifying information of such other person;
3. Obtain identification documents in such other person’s name; or
4. Obtain, record or access identifying information while impersonating a law-enforcement officer or an official of the government of the Commonwealth.

Identity theft is punishable as a Class 1 misdemeanor when the value of the theft is under $200.00 – the same penalty as for any other theft crime – a petit larceny punishment. When the identity theft results in an amount greater than $200.00, it is a Class 6 felony – identical to a grand larceny. The main difference between regular theft and identity theft is in the realm of repeat offenses. A second or subsequent conviction for identity theft is always punishable as a Class 6 felony – which means that you always face a maximum of 5 years in prison for a second offense.

Additional punishment enhancements for identity theft include:
(1) If you attempt to sell or distribute 5 or more persons’ identifying information which was obtained in the same transaction or occurrence, the crime will be punishable as a Class 6 felony regardless of the value of the theft.
(2) If you attempt to sell or distribute 50 or more persons’ identifying information which was obtained in the same transaction or occurrence, the crime will be punishable as a Class 5 felony regardless of the value of the theft.
(3) If you committed the identity theft to avoid summons, arrest, prosecution, or to impede a criminal investigation, the theft is always a Class 6 felony.

IDENTITY FRAUD

Identity fraud isn’t punishable on its own in Virginia as fraud, instead Virginia relies on the identity theft punishment as described above to deal with both acts of theft and acts of fraud. However, Virginia VA Code Section 18.2-186.3:1 provides instructions to consumers on how to report identity theft and how to help rectify their situation and their credit report.

 

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VIRGINIA SUPREME COURT AND COURT OF APPEALS DECISIONS GUIDING TRIAL COURTS IN APPLICATION OF THESE LAWS

Richardson v. Commonwealth, Va: Court of Appeals 2010

Levar Donnie Richardson (appellant) appeals from his convictions for uttering, in violation of Code § 18.2-170, and obtaining and attempting to obtain money by false pretenses, in violation of Code §§ 18.2-178 and 18.2-26. On appeal, appellant contends the evidence was insufficient to find him guilty of these offenses because the Commonwealth failed to prove appellant knew the instruments he possessed were forged. For the reasons that follow, we hold the evidence was sufficient, and we affirm appellant’s convictions.

I. BACKGROUND[1]

On appeal, “we review the evidence in the `light most favorable’ to the Commonwealth.” Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the record through this evidentiary prism 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.'” Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)).

So viewed, the evidence showed that on December 24, 2007, appellant entered an Alcohol Beverage Control store (ABC store) on George Washington Highway in Portsmouth. Appellant purchased a $19.43 bottle of vodka with a $100 American Express Traveler’s Cheque and received $80.57 in change. Appellant remained in the store for a few minutes, and then purchased another $19.43 bottle of vodka with a second $100 traveler’s check, again receiving $80.57 in change. During both transactions, appellant signed his own name to the check, presented his identification, and acted in a cordial and polite manner.

On December 27, 2007, appellant entered an ABC store on Victory Boulevard in Portsmouth. Appellant attempted to purchase a bottle of alcohol with a $100 American Express Traveler’s Cheque; however, the store manager refused to accept the check because it was not endorsed on the top signature line. Appellant took the check and left the store. At some point the same day, appellant returned to the George Washington Highway ABC store, this time negotiating a traveler’s check in exchange for a bottle of vodka and $89.03 in change. Again, appellant signed his own name to the check, presented his identification, and was cordial and polite.

Based on appellant’s negotiating several large traveler’s checks within a few days, the assistant manager at the George Washington ABC store, Pamela Anstead (Anstead), contacted American Express. American Express informed Anstead that the checks were counterfeit.

On January 10, 2008, appellant returned to the George Washington Highway ABC store and attempted to purchase a bottle of alcohol with another American Express Traveler’s Cheque. Anstead informed appellant that she could not accept the check without verifying it with American Express. Anstead then took the check and appellant’s driver’s license to a back room, and appellant briefly left the store. When appellant returned, he asked if everything was “good” with the check. Anstead said she was unable to determine the validity of the check, but she would try again. Appellant requested that she return his driver’s license, which Anstead did. Anstead then went to the back room of the store with the check. Appellant waited briefly, but before Anstead returned, appellant left the store and abandoned the check.

Appellant was arrested and charged with four counts of forgery, four counts of uttering, one count of obtaining money by false pretenses, and one count of attempting to obtain money by false pretenses.

At trial, the Commonwealth presented evidence from Special Agent David Huff (Huff) of the Virginia ABC Board and Senior Special Agent John Golbreski (Golbreski) for American Express. Huff testified that appellant voluntarily spoke with him after the incidents. According to Huff, appellant initially informed him that he found the checks in a leather pouch behind a convenience store. Appellant did not deny using the checks at the ABC stores.

Golbreski testified that all the checks at issue were counterfeit. He further testified that traveler’s checks have two signature lines, which must both be signed before the check can be properly negotiated.[2] Golbreski testified that it is highly unusual for a purchaser to use the checks without first signing the top signature line, as appellant attempted to do on at least one occasion, because underneath that line the checks instruct the purchaser, “[s]ign here immediately upon receipt of this traveler’s cheque.”

At the close of the Commonwealth’s case-in-chief, appellant moved to strike the evidence, arguing the Commonwealth failed to prove appellant had the requisite intent to defraud because the evidence did not show he knew the checks were forged. The trial court overruled appellant’s motion.

Appellant then presented evidence that he acquired the checks from his stepdaughter (S.G.). Both S.G. and her mother testified that S.G. received the checks from her biological father in New York and that S.G. gave the checks to appellant.[3]

At the close of all the evidence, appellant renewed his motion to strike the evidence. The court overruled appellant’s renewed motion, and the jury found appellant guilty of four counts of uttering, one count of obtaining money by false pretenses, and one count of attempting to obtain money by false pretenses. The jury found appellant not guilty of four counts of forgery. On March 4, 2009, the trial court entered a final order in accordance with the jury’s verdict. Appellant timely filed this appeal.

II. ANALYSIS

Appellant contends the evidence was insufficient to convict him of uttering and obtaining money by false pretenses because the Commonwealth did not prove, beyond a reasonable doubt, that appellant knew the checks were forged.[4] Appellant argues the Commonwealth relied on wholly circumstantial evidence in proving appellant’s requisite state of mind, and the circumstantial evidence presented was consistent with both guilt and innocence.

Uttering is an attempt to employ as true, a forged coin, note, or bill, knowing it to be forged. Code § 18.2-170(3); see also Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964) (noting, uttering “is an assertion by word or action that a writing known to be forged is good and valid”). Forgery “is defined as `the false making or materially altering with the intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.'” Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964)) (emphasis added). Likewise, Code § 18.2-178(a), which criminalizes obtaining money by false pretenses, states,

If 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; or if he obtain, by any false pretense or token, with such intent, the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony.

(Emphasis added).[5]

When the sufficiency of the evidence is challenged on appeal, the Court must “`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.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876 (2002)). The Court “may not substitute [its own] judgment for that of the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). The relevant question on appeal is whether “`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Kelly, 41 Va. App. at 257, 584 S.E.2d at 447).

“The fact that an instrument was forged, made payable to the defendant, and endorsed by him, is sufficient evidence of the defendant’s intent to defraud the drawee.” Fitzgerald, 227 Va. at 174, 313 S.E.2d at 395. In the particular context of uttering, “possession of the forged check allows the inference that [the accused] knew it to be forged.” Walker v. Commonwealth, 25 Va. App. 50, 59, 486 S.E.2d 126, 131 (1997). In the instant case, Golbreski testified that all the checks were forged. Thus, the jury was permitted to infer appellant’s guilty knowledge from possession of the checks alone.

However, appellant argues the uncontroverted evidence did not exclude the reasonable hypothesis of his innocence because: (1) he never tried to conceal his identity during any of the transactions; (2) he stayed in the store while one of the traveler’s checks was being verified; and (3) at all times he was cordial and polite. Appellant’s argument views the evidence in isolation and ignores the other evidence presented by the Commonwealth.

“`Intent may, and most often must, be proven by circumstantial evidence.'” Ellis v. Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 456 (1999) (quoting Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)). “If evidence of intent is wholly circumstantial, `all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'” Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)); accord Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984). “Circumstantial evidence is not viewed in isolation. `While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'” Hudson, 265 Va. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). “Subsequent acts of the drawer are of evidential value . . . in helping to establish the existence of the fraudulent intent at that specific time.” Rosser v. Commonwealth, 192 Va. 813, 817, 66 S.E.2d 851, 853 (1951).

The Commonwealth’s evidence showed that after appellant obtained the traveler’s checks, he immediately negotiated each check for an inexpensive item and a large amount of cash. On one occasion, appellant waited only a few minutes in between transactions at the same ABC store. Further, the Commonwealth’s evidence showed that when Anstead attempted to verify one of the checks, appellant left the store and abandoned the $100 check. Finally, appellant provided conflicting accounts as to how he obtained the checks. While appellant told Huff that he found the checks behind a convenience store, witnesses for appellant testified that S.G. received them from her father and then gave them to appellant. From these conflicting accounts, the jury was entitled to conclude that appellant was “lying to conceal his guilt.” Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004).

The evidence, taken as a whole and viewed in the light most favorable to the Commonwealth, was consistent with appellant’s guilt and inconsistent with innocence. Further, this Court must give deference to a jury’s reasonable inferences drawn from the facts. Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Based on all the evidence and the reasonable inferences drawn therefrom, the jury could reasonably conclude appellant knew the checks were forged. Accordingly, the Commonwealth’s evidence was sufficient to prove appellant had the requisite intent to defraud, necessary to support his convictions.

Finally, appellant argues that his convictions for uttering and obtaining money by false pretenses were inconsistent with the jury acquitting him of the forgery charges.

The law regarding inconsistent verdicts is well-settled in this Commonwealth. As this Court has held, “the fact that verdicts may, on their face, arguably appear inconsistent, does not provide a basis to reverse either conviction on appeal, provided the evidence supports each verdict. Jury verdicts may appear inconsistent because the jury has elected through mistake, compromise, or lenity to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another charged offense.”

Tyler v. Commonwealth, 21 Va. App. 702, 708, 467 S.E.2d 294, 297 (1996) (quoting Pugliese v. Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993)). As discussed above, the evidence was sufficient to support the jury’s findings on each element of the crimes for which appellant was convicted. Thus, the fact that the jury acquitted appellant of the forgery charges is of no consequence to his convictions for uttering and obtaining money by false pretenses.

III. CONCLUSION

For the foregoing reasons, we conclude the evidence was sufficient to support the jury’s finding that appellant had the requisite intent to defraud. Accordingly, we affirm appellant’s convictions.

Affirmed.

[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

[1] As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of this appeal.

[2] “`Traveler’s check’ means an instrument that (i) is payable on demand, (ii) is drawn on or payable at or through a bank, (iii) is designated by the term `traveler’s check’ or by a substantially similar term, and (iv) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument.” Code § 8.3A-104(i).

[3] As noted, this evidence was inconsistent with appellant’s previous position that he found the checks behind a convenience store.

[4] Appellant’s challenge to the sufficiency of the evidence for both uttering and obtaining money by false pretenses is the same — that the Commonwealth did not prove appellant’s fraudulent intent. Thus, we address the sufficiency of the evidence for all of appellant’s convictions under the same analysis.

[5] Appellant concedes that with the exception of appellant’s fraudulent intent, the Commonwealth sufficiently proved the elements of each offense.

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Brabson v. Commonwealth, Va: Court of Appeals 2010

Following a bench trial, Samuel Aaron Brabson was convicted of one count of larceny by false pretenses and one count of attempted larceny by false pretenses, in violation of Code §§ 18.2-178 and -26. Brabson now appeals those convictions, arguing that the evidence presented in the trial court was insufficient to prove his guilt. We disagree with Brabson, and affirm his convictions.

I.

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of these narrow questions presented on appeal. We view those facts and incidents in the “light most favorable” to the Commonwealth, as the prevailing party below, Finney v. Commonwealth, 277 Va. 83, 87, 671 S.E.2d 169, 172 (2009), and we grant to it all fair inferences flowing therefrom, Huffman v. Commonwealth, 51 Va. App. 469, 470, 658 S.E.2d 713, 713 (2008).

In 2005, Brabson was involved in a minor traffic accident, which he claimed aggravated a pre-existing spinal injury and left him unable to walk. Following the accident, Brabson filed an insurance claim with his automobile insurance carrier, Amica Mutual Insurance Company, and sought and received various benefits from the Virginia Department of Rehabilitative Services (DRS). After an insurance company employee performed a routine “activity check” on Brabson, the company became suspicious and hired a private investigator to observe Brabson and determine whether he was truly paralyzed. Following an extensive investigation, Brabson was indicted and tried for one count of larceny by false pretenses and one count of attempted larceny by false pretenses. The evidence presented at trial established that Brabson was not only capable of performing routine household chores, but also that he engaged in more strenuous activities such as mountain hiking and dancing. Brabson was convicted, and this appeal followed.

II.

A. Larceny By False Pretenses

Brabson challenges his conviction for larceny by false pretenses on the grounds that he “never obtained title to any of the property or services he received from the Department of Rehabilitative Services.”

In order to convict an individual for larceny by false pretenses in violation of Code § 18.2-178, 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.'” Reigert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 808 (1977) (quoting Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976)). In addition, the Commonwealth must prove that the defendant obtained not only possession of, but title to the property. 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, 965, 275 S.E.2d 622, 624 (1981) (citing R. Perkins, Criminal Law 306 (2d ed. 1969)).

Thus, Brabson’s interpretation of the law is correct: the Commonwealth was required to prove that he obtained not just possession, but actual ownership, of the property that he stole by false pretenses. The indictment alleged the theft of three separate and distinct items — a computer and accompanying software, rehabilitative services from a physical therapist, and a wheelchair. Brabson argues that because the computer and computer software were only lent to him by DRS, he never obtained title to those items. In addition, he argues that he never received title to the payments for the rehabilitative services. However, Brabson conceded both at trial during closing argument and on brief that he received title to the wheelchair. The theft of this item alone is sufficient to support the allegations contained in the indictment. Thus, the evidence is sufficient to support Brabson’s conviction for one count of larceny by false pretences.[1]

B. Attempted Larceny by False Pretenses

Brabson also argues that the evidence at trial was insufficient to support his conviction of attempted larceny by false pretenses because “[t]he representations that [he] made to a third party, which were indirectly relayed to his attorney and incorporated into an insurance settlement demand without his knowledge do not constitute an attempt to commit larceny by false pretenses.” As explained below, we disagree.

In order to convict an accused of attempted larceny by false pretenses, the Commonwealth must prove two elements: first, that the defendant had the specific intent to commit larceny by false pretenses, and second, that the defendant committed a direct, but ineffectual, act towards accomplishing the crime. Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978).

At the trial below, the Commonwealth established that Brabson hired an attorney and sued his automobile insurance company, Amica, for one million dollars under the uninsured motorist coverage of his policy for the injury he claimed to have suffered in the 2005 car accident. In order to establish the extent of Brabson’s injuries, and thus the amount of damages to which he was entitled, his attorney made several appointments for Brabson to be evaluated by rehabilitation and vocational experts. Brabson underwent a Physical Work Performance Evaluation (PWPE) administered by Kathy Dollins, a vocational expert. The counselor, Robert Jackson, prepared a report based on his evaluation of Brabson, his review of Brabson’s medical records, and his assessment of Brabson’s work qualifications. Jackson opined that Brabson could only work part-time with significant accommodations since the 2005 accident and that he could expect to lose 50% of his earning capacity over his lifetime as a result. Brabson’s attorney sent a demand letter to Amica, in which he relied on Jackson’s report.

At trial, Jackson testified that during the evaluation, Brabson remained in his wheelchair and indicated to Jackson that he was wheelchair bound. Brabson told Jackson that “[h]e was able to get up on a walker, but he indicated that it was essentially for stretching, but [he] was not functional with a walker.” Jackson did not physically examine Brabson; instead, Jackson discussed “functionality, what he could do and what he couldn’t do” with Brabson. Jackson testified that Brabson stated he “was able to sit for about an hour at a time, two hours maximum.. . . He must lay down and put heat and ice on his back . . . and do massage and stretching techniques . . . after short activities.” Brabson never told Jackson that he was actually able to walk, hike, and dance during the relevant time. Jackson testified that, had he known Brabson’s actual abilities, it would have “absolutely” changed his opinion as to Brabson’s ability to work.

Brabson argues that there was insufficient evidence to prove he had the requisite specific intent to commit larceny against Amica by false pretences because, he contends, the Commonwealth did not prove that he “had specific knowledge of how any specific action or statement by him was to be used, there can be no proof, even circumstantial, of a specific intent by Brabson, at the time, to commit larceny by false pretenses against Amica.” Appellant’s Br. at 21-22.

“Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.” Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). The Commonwealth may prove intent “by the circumstances, including a person’s conduct and statements.” Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000) (citing Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). Further, “`[t]he fact finder may infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts.'” Id. (quoting Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991)). Finally, “inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).

Here, the evidence in the trial court proved that Brabson lied about the extent of his injuries and his abilities to both his doctors and to Jackson, who performed his vocational assessment. The evidence also established that Brabson hired an attorney and sued his insurance company, seeking benefits under his policy. The trial court, sitting in this case as the trier of facts, could infer from this evidence that Brabson fully intended his attorney to zealously pursue his lawsuit like any other and that Brabson intended his misrepresentations to his physicians and to Jackson to convince his insurance company that he was no longer able to work, which would increase the amount of money he would receive from them. Thus, the evidence was sufficient to show that Brabson had the requisite specific intent to obtain money to which he was not entitled.

Brabson also argues that the evidence does not establish the second element of attempted larceny by false pretenses: that he made a direct, albeit ineffectual, act in furtherance of the crime. Brabson contends that “the Commonwealth’s best case is that Brabson misrepresented his condition to Ms. Dolling who, in turn, passed it along to Dr. Murphy [one of Brabson’s physicians], who, in turn, passed it along to Robert Jackson, [Brabson’s attorney’s] rehabilitation expert, who prepared a report to [the attorney], who incorporated it as part of a settlement demand to Amica.” Thus, Brabson argues, his act was too attenuated from the misrepresentation to Amica to fulfill the direct act element of attempted larceny by false pretenses.

However, “`[t]he attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offence, but for the intervention of circumstances independent of the will of the party.'” Hicks v. Commonwealth, 86 Va. 223, 228, 9 S.E. 1024, 1026 (1889) (quoting People v. Murray, 14 Cal. 159, 160 (1859)). Moreover, “[t]he victim of the fraudulent scheme need not be the person to whom the false pretense or misrepresentation is made.” Mosteller v. Commonwealth, 222 Va. 143, 148, 279 S.E.2d 380, 382 (1981).

There, the appellant, who was a sales representative for a furniture manufacturer, provided false information that was used to provide state-owned institutions with inflated bids for furniture. Id. at 146-47, 279 S.E.2d at 381. When the Commonwealth’s Department of Purchases and Supplies eventually approved a bid and paid the vendors, the appellant pocketed the difference between the true value of the furniture and the inflated figures he provided to the bidding vendors. Id. Thus, while Mosteller made false representations to the vendors regarding the cost of the furniture and “fictitious ancillary services” that he never provided, he ultimately defrauded the Commonwealth. Id. at 147, 279 S.E.2d at 381.

Similarly, the appellant in Quidley, 221 Va. at 693, 275 S.E.2d at 622, used a falsified purchase order from the Norfolk Social Service Bureau to buy clothing at J.C. Penney Company. Id. at 964, 275 S.E.2d at 624. Penney’s did, in fact, receive payment from the Bureau, and the appellant challenged her conviction on the grounds that the indictment, which indicated that Penney’s had been the victim of the larceny by false pretenses, was at fatal variance with the proof adduced at trial. Id. at 965, 275 S.E.2d at 624. Our Supreme Court rejected that argument, and held that the crime of false pretenses is “complete when the fraud intended is consummated by obtaining the property sought by means of the false representations . . . . [I]t is sufficient if the fraud of the accused has put the victim in such a position that he may eventually suffer loss.” Id. at 965, 275 S.E.2d at 625 (citations omitted).

The evidence in this case established that Brabson consistently made false representations regarding his disability and work capacity to whomever he needed to in order to gain financially. These misrepresentations included those made to the experts employed by his attorney to further his lawsuit. Accordingly, the trial court had adequate evidence to determine that Brabson had made a direct act in furtherance of the crime of larceny by false pretences.

III.

For the foregoing reasons, Brabson’s convictions are affirmed.

Affirmed.

[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

[1] Brabson’s question presented only raises the issue of the sufficiency of the evidence to prove that he received title to any of the property or services he received. On brief and at oral argument, Brabson argues that, because DRS was the “middle-man” in the wheelchair purchase, he did not receive title to the wheelchair from DRS, and, therefore, the Commonwealth did not prove that he committed larceny by false pretenses from DRS as alleged in the indictment. Because this argument raises a different legal issue from that encompassed in the question presented on appeal, we will not address it. See Rule 5A:12(c).

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Brown v. Com., 692 SE 2d 271 – Va: Court of Appeals 2010

Kaipha S. Brown (“Brown”) appeals his two convictions for embezzlement, in violation of Code § 18.2-111, and four convictions of uttering, in violation of Code § 18.2-172. On appeal, Brown contends that the evidence adduced at trial was insufficient to sustain any of his convictions. For the following reasons, we agree with Brown and reverse.

BACKGROUND

On appeal, “`[w]here the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'” Lunsford v. Commonwealth, 55 Va.App. 59, 60, 683 S.E.2d 831, 832 (2009) (quoting Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995)). So viewed the evidence was as follows.

The facts of this case concern the well-known practice of airline companies to overbook many of their flights. When a flight is overbooked, these companies compensate passengers who agree to be “bumped” from the flight, on which they have reserved a seat, by issuing vouchers redeemable for the purchase of a ticket on a future flight.

Brown was a customer service representative for United Airlines (“United”) from 1999 to 2005. In July of 2005, United suspended Brown without pay. During his suspension, United stripped Brown of his employee badge and denied him access to the company’s computer terminals. United never reinstated Brown’s employee privileges.[1]

On July 27, 2005, Brown went to Ronald Reagan Airport in Arlington County and approached a United ticket counter. There, Brown spoke with Lenny Starkweather (“Starkweather”), a customer service representative for United who recognized Brown as a former United employee. Brown presented Starkweather with several Denied Boarding Compensation Vouchers (“vouchers”)[2] in Brown’s name, and asked Starkweather 273*273 to exchange the vouchers for airline tickets. The vouchers were issued on July 20, 2005. Brown explained that he no longer worked for United and that he received the vouchers when he was “bumped” from a flight to London. Starkweather processed the transaction and issued Brown airline tickets.

On July 31, 2005, Brown returned to Ronald Reagan Airport and again approached the United ticket counter. This time, Brown spoke with Wanda Keeratisak (“Keeratisak”). Brown presented Keeratisak with several vouchers, which were issued on July 30, 2005, and requested that she issue him airline tickets. Keeratisak complied.

On October 19, 2005, United issued tickets to Ruth Mbazi and Endama Nixon at Ronald Reagan Airport in exchange for vouchers in the name of Brown’s father, “Sherman Brown.” United issued the vouchers in question on September 24, 2005, against a reservation made by Sherman Brown.

On November 11, 2005, Brown again went to Ronald Reagan Airport and approached the United ticket counter. There, Brown spoke with Ana Morales (“Morales”), United’s service director for that location. Once again, Brown presented vouchers to Morales and asked her to issue tickets in the names of Lawrence, Sherleen, Tobias, Lawrence, Jr., and Selma Totimeh.[3] Morales testified that United was aware of some inconsistencies concerning Brown’s vouchers and advised its employees to be on the lookout for Brown. However, after speaking with her supervisor, Morales issued the tickets to Brown anyway.[4] Ultimately, United determined that all of Brown’s vouchers were issued improperly because the underlying reservations were not paid for or, in the case of the voucher issued to “Sherman Brown,” the underlying reservation was honored.

Late in 2005, a United fraud investigator notified Detective Daniel Stafford (“Stafford”) of the Metropolitan Washington Airports Authority Police Department[5] of a potential “ticket fraud scheme” orchestrated by Brown. After speaking with a few of the United employees who had issued tickets to Brown in exchange for vouchers, Stafford contacted Brown and asked him to come to the police station for an interview. On January 28, 2006, Brown went to the station voluntarily and spoke with Stafford concerning the vouchers.[6] Because Brown had not yet been charged with a criminal offense, Stafford informed Brown that he was not under arrest and that he was free to leave at any time.

In the interview, Brown stated that he exploited a “loophole” he found in United’s reservation system. United’s reservation system allowed its customers to pay for their tickets at the airport, if they made their reservation within twenty-four hours of flight time. Brown explained that he would make a reservation on an overbooked flight and then volunteer to be “bumped” from the flight in exchange for a voucher. Brown would then leave the airport with a voucher but without having paid for his underlying reservation. In February of 2006, Stafford obtained warrants for Brown’s arrest from a magistrate. However, because Stafford could not locate Brown, he was not arrested until 2007.

Brown was charged with two counts of embezzlement and four counts of uttering a forged instrument. He requested a trial by jury. The Commonwealth proceeded on the theory that Brown committed the crime of embezzlement when he, by virtue of his employment with United, obtained improperly issued vouchers, which he later exchanged for airline tickets to the detriment of United. The Commonwealth further argued that Brown committed uttering when he presented 274*274 the improperly issued vouchers to United’s ticket agents.

At trial, Brown took the stand in his own defense. Brown testified that, while working at Dulles Airport in June of 2005, he realized that he could exploit United’s reservation system when he received vouchers from a European couple traveling in the United States. According to Brown, the travelers gave him their vouchers because they believed that they would be unable to use them before the vouchers’ expiration date. Brown took the vouchers back to Dulles Airport and attempted to exchange them for tickets. When the United ticket agent refused to issue the tickets to Brown, he “went behind the counter and issued the tickets.”[7]

Regarding the other occasions on which Brown obtained vouchers, Brown testified that he would call United and make a reservation on a flight for him and his family. United’s ticket agent would ask Brown if he planned to pay for the ticket then or at the airport. Brown testified that he would always elect to pay for the reservation at the airport. United then booked the flight and assigned seats to Brown and his family, giving Brown a confirmation number for the transaction. Brown testified that, with the confirmation number and seat assignment in hand, he would go to the airport on the date of his scheduled flight and proceed directly to the United ticket counter. When United announced that his flight was oversold, Brown would volunteer to give up his seats in exchange for a voucher. Brown would then leave the airport without having paid for his initial reservation. Brown further testified that he redeemed vouchers for tickets in the names of his friends and family, but could not recall if he was paid in return.

At the close of the Commonwealth’s case-in-chief and again at the close of all the evidence, Brown made a motion to strike all of the charges against him. Brown argued that the Commonwealth’s evidence was insufficient as a matter of law to support the convictions. The trial court denied Brown’s motion, and he was convicted.

This appeal followed.

ANALYSIS

“When considering a challenge that the evidence presented at trial is insufficient, 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.'” Baylor v. Commonwealth, 55 Va.App. 82, 86, 683 S.E.2d 843, 845 (2009) (quoting Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “We do not `substitute our judgment for that of the trier of fact.'” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

I. Embezzlement

Brown contends that the evidence adduced at trial was insufficient to sustain his convictions for embezzlement. Specifically, Brown argues that the Commonwealth produced no evidence demonstrating that he was entrusted with the airline tickets by virtue of his employment with United. Brown maintains that, absent such evidence, his convictions cannot be upheld. We agree.

Brown was convicted of two counts of embezzlement, in violation of Code § 18.2-111. That section provides:

If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond, 275*275 receipt, bill of lading or any other personal property, tangible or intangible, which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement.

Code § 18.2-111 (emphasis added).

To be convicted under this section, “the Commonwealth must prove that the accused `wrongfully appropriated to [his] use or benefit, with the intent to deprive the owner thereof, the property entrusted to [him] by virtue of [his] employment or office.'” Dove v. Commonwealth, 41 Va.App. 571, 577, 586 S.E.2d 890, 893 (2003) (emphasis added) (quoting Nestle v. Commonwealth, 22 Va.App. 336, 341, 470 S.E.2d 133, 136 (1996)). “[T]he Commonwealth must prove that the defendant was entrusted with the property of another.” Chiang v. Commonwealth, 6 Va.App. 13, 17, 365 S.E.2d 778, 780 (1988) (emphasis added). To entrust is “[t]o give (a person) the responsibility for something… after establishing a confidential relationship.” Black’s Law Dictionary 574 (8th ed. 2004). We find nothing in the record of this case demonstrating that Brown was entrusted with the airline tickets by virtue of his employment with United.

United placed Brown on indefinite suspension in July of 2005. At that time, United stripped Brown of his employee badge and denied Brown access to its computer terminals. Once suspended, Brown had no further access to United’s computer system. On July 27, 2005, and again on July 31, 2005, while suspended, Brown entered Ronald Reagan Airport and approached United’s ticket counter. Like any other customer, Brown stood in line at the ticket counter and waited for assistance. Brown then presented vouchers to the ticketing agent in exchange for airline tickets, as would any other customer. Though Starkweather and Morales knew that Brown was a former United employee, they treated him just like another customer in processing his transaction. These vouchers were not issued with Brown’s employee number, and the Commonwealth did not call any of the employees who issued the vouchers as witnesses.[8] At no point was Brown entrusted with the airline tickets by virtue of his employment with United.

The Commonwealth contends that Brown embezzled the vouchers by exploiting a “loophole” in United’s ticketing system that he became aware of by virtue of his employment with United. The Commonwealth argues that “Brown had physical access to the computers and was able to have vouchers issued using his ID number or another employee’s ID number.”[9] While the argument advanced by the Commonwealth on the issue of whether Brown was entrusted with the vouchers by virtue of his employment or received them in the same manner as any other customer may be academically interesting, contrary to the Commonwealth’s contention, Brown was not charged with embezzling the vouchers. Rather, the grand jury indictments allege that Brown embezzled the airline tickets by virtue of his employment with United.[10] The Attorney General’s argument might have merit had Brown been charged with larceny of the vouchers under Code § 18.2-98, but on appeal, it can rise no higher than the charges the Commonwealth’s Attorney chose to bring and as discussed above, the record contains no evidence demonstrating that Brown was ever entrusted with the airline tickets by virtue of his employment. Thus, we need go no further to reverse Brown’s convictions for embezzlement.

II. Uttering

Brown further contends that evidence at trial was insufficient to sustain his convictions 276*276 for uttering since the Commonwealth failed to show that the vouchers he presented to United were forgeries. Again, we agree.

Code § 18.2-172 provides, in pertinent part, that “[i]f any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170, to the prejudice of another’s right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony.” (Emphasis added). “Although the term is not defined by statute, the Supreme Court of Virginia has found uttering to be `an assertion by word or action that a writing known to be forged is good and valid.'” Bennett v. Commonwealth, 48 Va.App. 354, 357, 631 S.E.2d 332, 333 (2006) (quoting Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964)). It is axiomatic that in order to be convicted of uttering, the writing that is the basis for the conviction must, in fact, be a forgery. That is because “`[t]he purpose of the statute against forgery is to protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as being genuine.'” Rodriquez v. Commonwealth, 50 Va.App. 667, 671, 653 S.E.2d 296, 298 (2007) (quoting Muhammad v. Commonwealth, 13 Va.App. 194, 199, 409 S.E.2d 818, 821 (1991)).

A forgery is “defined as `the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.'” Id. (emphasis added) (quoting Fitzgerald v. Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984)). In this case, the Commonwealth failed to establish that the vouchers presented by Brown were either falsely made or materially altered in any way. Though the Commonwealth produced evidence that Brown’s vouchers were issued improperly, and in violation of United’s ticketing policy, nothing in the record suggests that the vouchers were anything other than what they purported to be.

The Commonwealth argues that, by exploiting a “loophole” in United’s ticketing system, Brown caused the improper issuance of vouchers, which were in effect, “`paper lies’ that [Brown] employed as tools to steal from United.” The Commonwealth points to Rodriquez in support of its contention that Brown’s conduct was sufficient to demonstrate forgery, as it constituted a false making. We disagree with the Commonwealth’s argument.

In Rodriquez, the defendant was lawfully stopped for a traffic offense and gave the officer his brother’s identifying information instead of his own. 50 Va. App. at 670, 653 S.E.2d at 298. Using that false information, the officer issued the defendant two summonses. Id. The defendant then signed each summons with his own name. Id. The trial court found the defendant guilty of two counts of forging a public document and two counts of uttering a forged public document. On appeal, this Court affirmed the convictions, stating “Rodriquez caused Officer Heflin to make a forged summons by providing false information to the officer as he prepared the documents.” Id. at 671, 653 S.E.2d at 298. We held that “[a]lthough Rodriquez did not personally write the false information, he provided the information to [Officer] Heflin as he created the documents and, in doing so, Rodriquez engaged in the `false making’ of the two public documents.” Id.

We find the facts of this case readily distinguishable from those of Rodriquez. The documents at issue in Rodriquez purported to be summonses issued to the defendant’s brother for traffic infractions. In fact, the summonses were intended for the defendant. By providing the officer with false information, the defendant in Rodriquez materially altered the nature of the documents. In contrast to Rodriquez, the vouchers in this case did not contain any false information and were exactly what they purported to be: a coupon or travel credit issued by United to Brown, to be used for future travel. The fact that Brown improperly caused United to issue the vouchers may arguably constitute a false pretense or fraud, but Brown was not so charged, and it is of no significance to his convictions for uttering forged instruments. Because the Commonwealth failed to prove that the vouchers presented by Brown were 277*277 forgeries, we reverse Brown’s convictions for uttering.

CONCLUSION

For the foregoing reasons, we hold that evidence adduced at trial was insufficient to sustain any of Brown’s convictions for embezzlement or uttering. Thus, we reverse Brown’s convictions and dismiss the indictments against him.

Reversed and dismissed.

[1] Ultimately, United terminated Brown on September 1, 2005, for violating the company’s ticketing policy concerning vouchers.

[2] Vouchers are issued by United to its customers who give up their seats, either voluntarily or involuntarily, on flights that are overbooked. Instead of traveling on their original flight, these passengers are given a voucher to be used for future travel. Vouchers are issued by United ticket agents and customer service representatives, and come in the form of a coupon or travel credit. The value of these vouchers ranges from $100-$600. Printed on each voucher is the ID number of the United employee who issued it.

[3] Sherleen Totimeh was Brown’s sister.

[4] United revoked the Totimehs’ tickets.

[5] The Metropolitan Washington Airports Authority Police Department has jurisdiction over Ronald Reagan Airport, Dulles Airport, and the immediate area surrounding them.

[6] The interview was videotaped and admitted into evidence at trial.

[7] Though United suspended, and ultimately, terminated Brown for these actions, Brown was never charged with embezzlement or any other criminal offense for issuing these tickets to himself.

[8] The record reflects that all travel vouchers contain the employee number of the employee issuing the voucher.

[9] Brown’s employee number was not on any of the vouchers he tendered to United in return for the tickets referred to in the indictments.

[10] The indictments charging Brown with embezzlement for his actions on or about July 27, 2005, and July 31, 2005, read as follows: “[Brown] in the County of Arlington, did wrongfully and fraudulently use, dispose of, conceal, or embezzle airline tickets … which he shall have received… by virtue of his office, trust, or employment….” (Emphasis added).