                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Decker and AtLee
PUBLISHED


            Argued at Chesapeake, Virginia


            MICHAEL PAUL REID
                                                                                 OPINION BY
            v.     Record No. 0511-15-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                              FEBRUARY 2, 2016
            COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                           C. Peter Tench, Judge

                           Joshua A. Goff (Law Office of Joshua A. Goff, PLC, on brief), for
                           appellant.

                           Christopher P. Schandevel, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   After a bench trial, the Circuit Court for the City of Newport News (“trial court”)

            convicted appellant Michael Paul Reid of two counts of obtaining money by false pretenses. On

            appeal, Reid argues that the trial court erred in denying his motion to strike the Commonwealth’s

            evidence regarding the two counts of obtaining money by false pretenses because: (1) a loan of

            currency was legally insufficient to transfer both title and possession of the property in question

            to Reid, and (2) the evidence failed to establish that the pretenses Reid used to obtain the

            currency were false. Finding no error, we affirm.

                                                     I. BACKGROUND

                   At trial, two witnesses (Christina Etienne and Alexander Williams, or “the victims”)

            testified to similar interactions with Reid, although their interactions occurred months apart. On

            both occasions, while driving near the Newport News Shipyard, Reid flagged the victim down.

            He told them that he worked at the Shipyard and that his car had been towed for parking
illegally. He asked each for a ride to get his car from the towing company, and asked them to

loan him money to pay the fee to recover his car. He also promised to repay them and to provide

additional money beyond the amount of the loan, from cash he claimed was in his vehicle, for

their time and help.

       Both victims testified that Reid persuaded them to go to an ATM and withdraw more

money than they were comfortable with and that even after doing so, Reid continued to ask them

for additional money. All told, in what was ostensibly a loan, Etienne gave Reid a total of $280

and Williams gave him $300. Under the guise of obtaining more money in order to pay to

retrieve his car, Reid had each victim drive him to various places. Reid would have them park,

then he would go around the corner and disappear into a residence while the victim waited in the

car. Both interactions went on for hours. Neither resulted in Reid recovering the allegedly

towed car, going to a towing company, or repaying the victim.

                                             II. ANALYSIS

                             A. Transfer of Title or Ownership to Currency

       “What the elements of the offense are is a question of law that we review de novo.

Whether the evidence adduced is sufficient to prove each of those elements is a factual finding,

which will not be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285

Va. 187, 223-24, 738 S.E.2d 847, 868 (2013).

       In Virginia, “by statute, the obtaining of money by false pretenses is larceny.” Millard v.

Commonwealth, 34 Va. App. 202, 205, 539 S.E.2d 84, 85 (2000); see Code § 18.2-178.

               To sustain a conviction of larceny by false pretenses, the
               Commonwealth must prove: (a) that the accused intended to
               defraud; (b) that a fraud actually occurred; (c) that the accused
               used false pretenses to perpetrate the fraud; and (d) that the false
               pretenses induced the owner to part with his property.

Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161 (1994).

                                                -2-
       Larceny by false pretenses, unlike larceny by trick,1 requires that title or ownership pass

to the perpetrator. See Bray v. Commonwealth, 9 Va. App. 417, 424, 388 S.E.2d 837, 840

(1990) (“An essential element of larceny by false pretenses is that both title to and possession of

property must pass from the victim to the defendant.” (quoting Cunningham v. Commonwealth,

219 Va. 399, 402, 247 S.E.2d 683, 685 (1978)); Davies v. Commonwealth, 15 Va. App. 350,

352, 423 S.E.2d 839, 840 (1992) (“The requirement that the defendant obtain ownership of the

property, rather than mere possession, distinguishes the offense of larceny by false pretenses

from the offense of larceny [by trick].”). This additional distinguishing element is properly

described as either title or ownership; these are not separate elements, only different terms.2 As

Reid’s convictions were for larceny by false pretenses, we must determine whether title, or more

germane to this discussion, ownership, effectively passed to Reid.

       Determining when title or ownership passes, as opposed to mere possession, is less

straightforward with currency than with other tangible property.3 Virginia’s appellate courts

have not addressed the precise issue before us. “When the property obtained is money,



       1
         Larceny by trick is not a separate and distinct statutory offense (unlike larceny by false
pretenses), but rather is a common law species of larceny where the element of trick substitutes
for the wrongful taking element required by larceny. See 7 Ronald J. Bacigal, Virginia Practice:
Criminal Offenses and Defenses 420 (2015-2016 ed.) (noting that “larceny by trick . . . was
assimilated into larceny on the theory that consent obtained by fraud was not true consent and
hence that the taker had trespassed upon the chattel without consent of the possessor”).
       2
         We recognize that the terms are not always synonymous. See Lewis v. Commonwealth,
28 Va. App. 164, 169, 503 S.E.2d 222, 224 (1998) (affirming a false pretenses conviction even
though the seller retained title to a truck as security under a conditional sales contract).
However, as used here, “title” means “the legal link between a person who owns property and
the property itself,” not the other common use connoting “[l]egal evidence of a person’s
ownership rights in property.” Title, Black’s Law Dictionary (10th ed. 2014).
       3
          “In most cases one who hands over money to another never expects to get that very
money back; and so it might be thought in most cases of money obtained by fraud the wrongdoer
obtains title, making his crime false pretenses rather than larceny by trick.” Wayne R. LaFave, 3
Substantive Criminal Law § 19.7(d)(2) (2d ed. 2003).
                                                 -3-
[Virginia] cases generally do not distinguish between ownership and possession. Such cases

tend to turn on whether the misrepresentation was one of existing fact which makes out false

pretenses or some other fraud which makes out larceny by trick.” 7 Ronald J. Bacigal, Virginia

Practice: Criminal Offenses and Defenses 272-73 (2013-2014 ed.). However, the fact that the

transfer was a loan with a promise of repayment and interest does not preclude, categorically, a

larceny by false pretenses conviction. See Jewel v. Commonwealth, 30 Va. App. 416, 517

S.E.2d 264 (1999), aff’d, 260 Va. 430, 536 S.E.2d 905 (2000). In Jewel, the defendant produced

false contracts to induce the victim to loan him money to rent equipment allegedly needed to

perform the contracts. The defendant was to repay the loan, plus interest. This Court upheld his

conviction for larceny by false pretenses, rejecting the defendant’s argument that larceny by false

pretenses requires that a defendant intend to permanently deprive the victim of the goods. This

Court explained:

               the gravamen of the offense, . . . is the obtainment of ownership of
               property, by false representations or pretenses. But there is no
               requirement that the intended victim suffer actual pecuniary loss.
               Ultimate financial gain or loss to the victim is immaterial. The
               crime is complete when the fraud intended is consummated by
               obtaining the property sought by means of the false
               representations, and the offense is not purged by ultimate
               restoration or payment to the victim. It is sufficient if the fraud of
               the accused has put the victim in such a position that he may
               eventually suffer loss.

Id. at 427, 517 S.E.2d at 270 (quoting Quidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d

622, 624-25 (1981)).

       However, it is not clear that all loans with a promise of repayment transfer title or

ownership.

               It is generally held that where the victim hands money to the
               wrongdoer with the understanding that the latter is to spend it only
               for a particular purpose (thus creating an agency or trust, it would
               seem) title does not pass to the wrongdoer . . . . Thus where the
               victim hands money to the wrongdoer to be invested in the stock
                                                -4-
               market, or to purchase specified property, or to bribe a particular
               official,[4] and the wrongdoer, instead of thus dealing with the
               money, absconds with it, the crime is larceny by trick rather than
               false pretenses, the wrongdoer never having acquired title.

               On the other hand, it is possible that the victim should agree or
               understand that the money, though desired for a particular purpose,
               might be used for any purpose—i.e., the defendant’s lie about his
               need for money induces the victim to make a loan rather than to
               create an agency or trust—in which case title to the money does
               pass to the defendant . . . .

Wayne R. LaFave, 3 Substantive Criminal Law § 19.7(d)(2) (2d ed. 2003 & Supp. 2014-2015)

(emphasis added) (footnote omitted). Nothing in Virginia’s statutory or case law suggests any

reason to deviate from this common-sense approach, an approach which has been applied in

other jurisdictions. The question, then, is if the transfer of currency was so that the defendant

would use it on behalf of the victim (larceny by trick) or for his or her own benefit (false

pretenses). In other words, we must determine if the victim intended to create an agent or trustee

relationship. See, e.g., Graham v. United States, 187 F.2d 87, 89-90 (D.C. Cir. 1950) (affirming

conviction for larceny by trick where the defendant, an attorney, solicited money from a client in

order to bribe a policeman on the client’s behalf but did not do so); State v. Scott, 256 S.W. 745,

747 (Mo. 1923) (ruling it was larceny by trick, not false pretenses, because the victim “did not

intend to invest the defendant with the title to the money” when the victim gave money to the

defendant to buy the victim a suit, but instead the defendant took the money and gave the victim

a package containing rags); People v. Miller, 62 N.E. 418, 423 (N.Y. 1902) (holding that

defendant committed larceny by trick, not false pretenses, when the victim gave defendant

money to invest in the stock market, because the victim “did not intend to part with her title to

the money to the defendant”); State v. Barnes, 354 S.E.2d 606, 609 (W. Va. 1987) (upholding a



       4
         Although it is ambiguous in this quotation, the cited cases all refer to a victim who
intends that the defendant take these actions on the victim’s behalf.
                                                -5-
false pretenses conviction where the victim loaned money to the defendant so he could buy

clothes for his family because “[t]he lender intend[ed] to pass both title to and possession of the

loan proceeds”).

       Reid argues that, because the victims loaned money expecting to receive repayment and

an additional profit, Reid could not have gained title to the currency as larceny by false pretenses

requires. Instead, Reid reasons, the victims only gave Reid temporary possession of their funds.

Jewel plainly rejects this argument. The only potentially meaningful distinction is that here,

unlike in Jewel, the victims remained with Reid in an effort to ensure he used the funds and

repaid them as promised.5 Reid argues that this evinced their intent to pass possession but not

title. We disagree. The victims loaned the money for Reid to use for his own purposes—to

recover his vehicle. Even if they did not intend to give him the funds for his unrestricted use

(which Jewel makes plain is not required for title to transfer), he was not using the money on

their behalf or at their behest. The victims clearly relinquished the funds for Reid to use for his

own benefit. Even if the victims believed that the loan was for a specific purpose, that purpose

was Reid’s, not their own. Therefore, because Reid took both possession and ownership of the

victim’s funds, he committed larceny by false pretenses.

                                 B. Sufficiency of the Evidence of Fraud

       To support a conviction for larceny by false pretenses, the Commonwealth must prove

that the pretenses employed were in fact false. See Wynne, 18 Va. App. at 460, 445 S.E.2d at

161. “The false pretense must be a false representation of an existing fact or past event.”

Watson v. Commonwealth, 4 Va. App. 450, 452, 358 S.E.2d 735, 736 (1987). In a challenge to



       5
          This distinction is more relevant to whether the victims transferred possession, which
neither party contests. Furthermore, the victims waited in their cars as Reid went into various
houses, where he could have spent or otherwise disposed of the loaned money. In addition, they
both, ultimately, left Reid without having recovered their money.
                                                -6-
the sufficiency of the evidence of falsity, we view the evidence, and all inferences reasonably

drawn from it, in the light most favorable to the Commonwealth. Muhammad v.

Commonwealth, 269 Va. 451, 536, 619 S.E.2d 16, 65 (2005). “It is our duty to affirm the trial

court’s judgment unless that judgment is plainly wrong or without evidence to support it.” Id.

We must also “ask whether ‘any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’” Ervin v. Commonwealth, 57 Va. App. 495, 502, 704

S.E.2d 135, 138 (2011) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d

384, 387 (2003)). So viewed, the Commonwealth met its burden.

       Here, several facts collectively induced the victims to lend Reid money. First, Reid said

his car was towed, and he needed a ride, and then a loan, to get it. Second, he said he could

repay the victims from money currently in his towed vehicle. He also told the victims that he

would pay them additional money to compensate for their time and trouble (although this was

not essential to either victim’s motivation in making the initial loan). Reid argues that, because

the Commonwealth did not affirmatively prove that Reid in fact did not have a towed car

containing the means to repay the victims, it failed to prove that Reid’s inducements were false.

Under Reid’s view, to satisfy the falsity element, the Commonwealth needed to prove a negative,

identifying every vehicle to which Reid had access, and determine that none, on the dates in

question, were with any nearby towing company (or contained the promised cash). In light of

the evidence, we do not agree that such proof is necessary to meet the Commonwealth’s burden.

       Here, Reid used identical stories to convince each victim to drive him around and lend

him money. He then led the victims on bizarre capers around the city, convincing them to give

him money along the way. Although Reid said his car had been towed, and even told one victim

exactly where his car allegedly had been towed, he never directed either victim to go to any

towing company. Both victims gave hundreds of dollars to Reid, yet he still claimed to need

                                               -7-
additional funds to recover the vehicle. Neither victim received the promised repayment.

Viewing these facts in the light most favorable to the Commonwealth, and drawing natural

inferences therefrom, a rational trier of fact certainly could have found the evidence sufficient to

show Reid employed false pretenses.

                                         III. CONCLUSION

       For the foregoing reasons, we find no error and affirm Reid’s convictions.

                                                                                          Affirmed.




                                                -8-
