                       COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia


NATHAN B. KIRK
                                            MEMORANDUM OPINION * BY
v.             Record No. 2735-97-4         JUDGE DONALD W. LEMONS
                                               DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         Michael P. McWeeny, Judge
               Jean H. Im, Assistant Public Defender (Office
               of the Public Defender, on brief), for
               appellant.

               Jeffrey S. Shapiro, Assistant Attorney
               General (Mark L. Earley, Attorney General, on
               brief), for appellee.



        Nathan B. Kirk appeals his conviction for obtaining property

by false pretenses alleging that the trial court improperly

instructed the jury on the elements of that offense.        Finding no

error, we affirm his conviction.

        On June 13, 1995, appellant verbally presented a purchase

order number to James Payne, an employee in the parts department

of OurisMan Toyota car dealership.      Payne then gave Kirk a

compact disc player and generated a receipt that was signed by

Kirk.       Payne testified that he knew Kirk was employed by Farrish

Oldsmobile and that he had done business with him in the same

capacity on at least three or four prior occasions.         Payne

testified that he believed Kirk was giving him a valid purchase
        *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
order number and that he gave him the compact disc player on that

basis.

     John Holcombe, employed as a parts manager by Farrish

Oldsmobile, testified that he did not pay the bill from OurisMan

Toyota for the compact disc player because the Oldsmobile

dealership never received the item.    Farrish Oldsmobile had no

record of the purchase order number that Kirk provided to Payne.

     Kirk was charged with obtaining property by false pretenses,

a violation of Code § 18.2-178.   At the conclusion of the

evidence at his jury trial, Kirk requested the following

instruction:
          Nathan Kirk is charged with the crime of
          obtaining property by false pretense or
          token. The Commonwealth must prove beyond a
          reasonable doubt each of the following
          elements of that crime:

          (1)   that Mr. Kirk made false representations of
                existing facts or past events to Fairfax
                OurisMan Toyota; and

          (2)   that Mr. Kirk made such representations
                with the knowledge of their falsity; and

          (3)   that the representations were made with
                the intent to defraud; and

          (4)   that the false representations were used
                for the purpose of perpetrating the
                fraud; and

          (5)   that an actual fraud occurred; and

          (6)   that the false pretenses induced the
                owner to part with the property; and

          (7)   that both the title and possession of
                the property passed from the owner to
                Mr. Kirk; and




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          (8)   that the property received was worth
                $200.00 or more.

          If you find from the evidence that the
          Commonwealth has proved beyond a reasonable
          doubt each of the above elements of the
          offense as charged, then you shall return a
          verdict of guilty, but shall not fix
          punishment until you have received further
          instructions from the Court.

          If you find from the evidence that the
          Commonwealth has failed to prove beyond a
          reasonable doubt any one or more of the
          elements of the offense, then you shall find
          the defendant not guilty.

     The court granted the requested instruction, but deleted

paragraph (4) finding that it was duplicative of paragraph (3).

The jury found Kirk guilty of obtaining property by false

pretenses, and the court affirmed the jury's verdict.    Kirk

maintains that removal of paragraph (4) from the instruction

resulted in an incomplete instruction and denied him a fair

trial.
          In order to sustain a conviction for larceny
          by false pretenses, 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 used for the purpose,
          that is, the false pretenses to some degree
          must have induced the owner to part with his
          property."


Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717

(1976) (citation omitted).
          In this context, the false pretense must be a
          representation as to any existing fact or
          past event. But merely showing that the
          accused knowingly stated what was false is
          not sufficient; there must also be proof that



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          his intent was to defraud. Furthermore, the
          fraudulent intent must have existed at the
          time the false pretenses were made, by which
          the property was obtained.


Reigert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803,

807-08 (1977) (citations omitted).

     In order for the jury to convict the defendant, the

instruction given by the trial judge required proof beyond a

reasonable doubt that:    (1) Kirk made a false representation of a

past event or existing fact; (2) Kirk had the intent to defraud

Ourisman Toyota when the false representations were made; (3)

because of the false representations, Ourisman Toyota parted with

title to and possession of the property; and (4) the value of the

property was over $200.
     A trial court has a duty to avoid giving redundant or

repetitive instructions.    See League v. Commonwealth, 9 Va. App.

199, 210, 385 S.E.2d 232, 239 (1989).   All of the elements

necessary for a conviction of obtaining property by false

pretenses were contained in the instruction.    Although the trial

court deleted paragraph (4), finding that it was duplicative of

paragraph (3), paragraph (4) ("that the false representations

were used for the purpose of perpetrating the fraud") was

actually duplicative of paragraph (6) ("that the false

representations induced the owner to part with the property").

It was properly removed from the instruction.   The jury was

instructed on all elements of the offense.

     The conviction is affirmed.


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        Affirmed.




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