                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges McCullough, Russell and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              DUANE AUBREY DIGGS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0673-14-1                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                   MAY 19, 2015
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                               David F. Pugh, Judge

                               Robert P. Stenzhorn (Schempf & Ware, PLLC, on briefs), for
                               appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Duane Aubrey Diggs challenges his conviction for obtaining money or property by false

              pretenses, in violation of Code § 18.2-178. The indictment alleged that he obtained money or

              property from “Hall Ford.” Appellant contends, first, that the indictment identified the wrong party

              and, second, that the evidence against him is insufficient as a matter of law. We reject both

              contentions and affirm.

                                                        BACKGROUND

                     On September 27, 2011, appellant brought a 2008 model Lincoln Navigator to Hall Ford

              Lincoln for service. Appellant explained that someone was interested in purchasing the vehicle and

              that he wanted it looked over before the purchase took place. The repair, which was classified as a

              warranty repair, necessitated $2,192.84 in parts and $750.80 in labor. Quality Van Service was the

              vehicle’s title owner at that time. Appellant was the only person who spoke with the dealership

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
about the repairs to the vehicle. Appellant paid for the repairs that were not covered by the warranty

with his own credit card.

       The dealership bears the initial cost of parts and labor for warranty work. After the repairs

are done and the customer has picked up the vehicle, the dealership closes the order. One or two

days after closing the order, the dealership then bills Ford Motor Company for the parts and labor it

provided for performing warranty work. Ford Motor Company then either reimburses the dealer or

denies the claim. If Ford denies a dealership’s warranty claim, the dealership can pursue a number

of avenues for recovery, either from Ford Motor Company or from the customer. In particular, if a

warranty claim is denied because the customer provided the dealer with incorrect information, the

dealership can pursue legal action against the customer. Ford Motor Company paid for the warranty

work here.

       As part of its routine process, the dealership checked the odometer on the 2008 Navigator.

The odometer read 47,751 miles. The basic factory warranty on the vehicle ended at 50,000 miles

or four years. Approximately eleven months before, however, the vehicle’s odometer read 105,333,

as noted in a service record from a different dealership, Williamsburg Ford.

       Special Agent Merrill Craig of the Department of Motor Vehicles opened an investigation in

connection with the discrepancy in mileage on appellant’s Lincoln Navigator. Appellant voluntarily

met with, and gave a statement to, Special Agent Craig and two other agents at the Hampton

Department of Motor Vehicles. Appellant stated that “he did change out the odometer and rolled it

back” and that he did so “in order to get the warranty work done.” According to Special Agent

Craig, appellant stated that he physically changed the odometer. When asked if his wife had altered

the vehicle’s mileage, appellant responded “that he had done it and he would take personal

responsibility for any charges that came out of this.”




                                                 -2-
       A grand jury indicted appellant for obtaining money or property by false pretenses from

“Hall Ford.” At the outset of his trial, appellant argued that the case should be dismissed with

prejudice because the indictment alleged the wrong victim. The correct victim, he argued, was Ford

Motor Company, not the dealership. Appellant later moved to strike the evidence, contending that

Ford Motor Company was the “proper victim.” The trial court denied the motions. The court found

appellant guilty and sentenced him to serve twenty years with seventeen suspended. The court also

ordered him to restitute Hall Ford in the amount of $3,398.05.

                                            ANALYSIS

              I. THERE WAS NO VARIANCE BETWEEN THE INDICTMENT AND THE PROOF.

       Appellant argues that there was a “fatal error” in the indictment. Specifically, he contends

that the indictment identified the dealership, Hall Ford, as the victim when the actual victim was

Ford Motor Company. In his view, there was a fatal divergence between the allegation in the

indictment and the proof at trial. He analogizes this case to Gardner v. Commonwealth, 262 Va. 18,

546 S.E.2d 686 (2001).

       “Notice to the accused of the offense charged against him is the rockbed requirement

which insures the accused a fair and impartial trial on the merits and forms the key to the fatal

variance rule.” Hairston v. Commonwealth, 2 Va. App. 211, 214, 343 S.E.2d 355, 357 (1986).

“A variance occurs when the criminal pleadings differ from the proof at trial.” Purvy v.

Commonwealth, 59 Va. App. 260, 266, 717 S.E.2d 847, 850 (2011). “[A] variance will be

deemed fatal ‘only when the proof is different from and irrelevant to the crime defined in the

indictment and is, therefore, insufficient to prove the commission of the crime charged.”’ Id. at

267, 717 S.E.2d at 850 (quoting Stokes v. Commonwealth, 49 Va. App. 401, 406, 641 S.E.2d

780, 783 (2007)). “In short, the ‘offense as charged must be proved.’” Id. (quoting Mitchell v.

Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).

                                                 -3-
        In Gardner, the indictment identified “George Gardner” as the victim of a withdrawal of

funds from his bank account. 262 Va. at 19, 546 S.E.2d at 686. The Supreme Court explained that,

from a legal standpoint, the actual victim was the bank. Id. at 25, 546 S.E.2d at 690. This failure to

identify the correct victim, the Court concluded, constituted a fatal variance. Id. at 23-24, 25, 546

S.E.2d at 689, 690. Gardner did not involve a situation, such as the one here, where the targeted

victim suffered an initial loss of property but can potentially be made whole by a third party. The

Court explained that the funds were the property of the bank, “until the instant the defendant

obtained ownership through her use of the forged withdrawal slip.” Id. at 22, 546 S.E.2d at 688.

        Quidley v. Commonwealth, 221 Va. 963, 275 S.E.2d 622 (1981), controls the present case.

Quidley and an accomplice obtained clothing from a J.C. Penney store. Id. at 964, 275 S.E.2d at

624. They used a forged “Purchase Order” form from the Norfolk Social Service Bureau. Id. at

964-65, 275 S.E.2d at 624. Quidley and her accomplice claimed to purchase the clothing for a

person in need, but in fact, the clothing was for their own use. Id. On appeal, Quidley argued that

there existed a fatal variance between the indictment and the proof because the Social Service

Bureau compensated J.C. Penney for the goods, and therefore, the true victim was the Social

Service Bureau or the purported welfare recipient – not J.C. Penney. Id. at 965, 275 S.E.2d at 624.

The Supreme Court disagreed, reasoning that “[t]he crime [of obtaining money or property by false

pretenses] 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.” Id. at 966, 275 S.E.2d at 625 (citation omitted). The Court unequivocally held that

“[u]ltimate financial gain or loss to the victim is immaterial.” Id.

        Here, as in Quidley, appellant consummated the offense when he “obtain[ed] the property

sought by means of the false representations,” id., i.e., when he obtained the parts and labor from

the dealership under the false pretense that the vehicle was covered by a warranty. Although

                                                  -4-
appellant argues that Quidley is distinguished because Hall Ford did not own the property, the

evidence establishes that, at the time appellant completed the crime, the parts belonged to Hall Ford

– not Ford Motor Company. The likelihood, even the fact, of reimbursement does not purge the

offense. Furthermore, “[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. As the testimony established, Ford Motor

Company may well have refused to pay for this work, which would have left the dealership with no

option but to seek legal redress against appellant.

        The indictment identified the correct victim: Hall Ford. There is no variance, much less a

fatal one, between the indictment and the proof.

                         II. THE EVIDENCE ESTABLISHES APPELLANT’S GUILT.

        Appellant also contends that the evidence is insufficient to prove his guilt. When

considering a challenge to the sufficiency of the evidence presented at trial, “‘we presume the

judgment of the trial court to be correct.’” Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94

(1992)). We reverse only if the trial court’s decision is “‘plainly wrong or without evidence to

support it.’” Id. at 99-100, 570 S.E.2d at 877 (quoting Dodge v. Dodge, 2 Va. App. 238, 242,

343 S.E.2d 363, 365 (1986)). Even if our opinion were to differ, we do not “substitute our

judgment for that of the trier of fact.” 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 (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.

                                                   -5-
        The elements of obtaining money or property by false pretenses are

                (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. Moreover,
                the false pretense must be a representation as to an existing fact or
                a past event.

Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976) (citations omitted).

        Viewed under this standard, the evidence establishes that the vehicle in question had

105,333 miles on the odometer as of November 30, 2010. When appellant presented the vehicle for

service at Hall Ford on September 27, 2011, the odometer read 47,751 miles. The basic factory

warranty on the vehicle ended at 50,000 miles or four years. The catalytic converter, one of the

items repaired, was covered by a separate warranty of up to eight years or 80,000 miles. Appellant

admitted that “he did change out the odometer and rolled it back” and that he did so, as he told

Special Agent Craig, “in order to get the warranty work done.” As a consequence of this deception,

Hall Ford provided several thousand dollars in parts and several hundred dollars in labor. This

evidence is amply sufficient for the factfinder to conclude that appellant was guilty of the crime.

        Appellant raises a number of arguments to challenge the sufficiency of the evidence, the

gravamen of which is that he lacked the intent to commit larceny. Appellant notes that he did not

own the vehicle in question. He finds it significant that Hall Ford, on its own initiative, sought

warranty coverage for the repairs. He also highlights the fact that Ford Motor Company will

occasionally cover repairs beyond the warranty out of goodwill. He contends that he did not know

the extent of the repairs needed and that Hall Ford suggested certain repairs of which he was

unaware. Finally, he attacks the testimony of Special Agent Craig, arguing that it was imprecise,

equivocal, uncorroborated, and “self-serving.” He faults Special Agent Craig for never

“memorializ[ing]” appellant’s statement, and he says that he gave the statement under pressure. He

                                                 -6-
complains that Special Agent Craig did not investigate the possibility that previous repairs to the

vehicle may have caused the discrepancy in the mileage.

        None of these arguments are availing. It was entirely predictable that Hall Ford would seek

to cover the repairs under warranty. Indeed, appellant stated that he changed the odometer to “get

the warranty work done.” The service technician who spoke with appellant recalled appellant’s

expectation that the work would be done under warranty.

        In addition, it is immaterial which person or entity held the title to the vehicle at the time

appellant requested the service. Appellant stated that it was “his vehicle,” and although Special

Agent Craig identified it as appellant’s “father in law’s vehicle,” appellant obviously was connected

with it. He presented it for repairs and, with his own credit card, paid for the items that were not

covered.

        Any challenges to Special Agent Craig’s handling of appellant’s statement went to the

weight of the evidence – not its admissibility. There is no evidence to support the claim that

appellant’s statement was made under pressure. Appellant appeared at the DMV office of his own

accord. He was told that he was not under arrest and that he was free to go at any time. Appellant’s

speculation concerning the possibility that Ford would have covered the repairs above and beyond

the scope of the warranty does not detract from the fact that the Commonwealth proved the

elements of the crime and that Ford Motor Company did not, in fact, cover the repairs beyond the

scope of the warranty. Appellant’s statement indicates that he knew repairs would be covered by

warranty if he reduced the mileage on the vehicle, and he successfully reduced the mileage to avoid

paying for these repairs out of pocket. His statement about changing the odometer was corroborated

by the repair records from Hall Ford and Williamsburg Ford, which established a discrepancy in the

mileage of the vehicle.




                                                  -7-
       Appellant also notes that the digital odometer in the vehicle could not be “rolled back” as

with the old mechanical odometers. Appellant’s statement, however, was that he had “change[d]

out the odometer and rolled it back.” Rather than find that appellant mechanically rolled back the

mileage on a digital odometer, the factfinder could readily conclude that appellant acknowledged

inserting a new odometer, which had the effect of rolling back the mileage.1

                                          CONCLUSION

       We affirm the judgment of the trial court.

                                                                                           Affirmed.




       1
        Appellant argues that the trial court improperly awarded restitution to Hall Ford,
because Ford Motor Company paid the warranty claim. There is no assignment of error on this
point. Accordingly, we do not reach the issue. See Rule 5A:20; Winston v. Commonwealth, 51
Va. App. 74, 82 n.4, 654 S.E.2d 340, 345 n.4 (2007).

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