                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia


ROBERT EUGENE LEE
                                          MEMORANDUM OPINION * BY
v.        Record No. 0770-97-2         JUDGE JERE M. H. WILLIS, JR.
                                            FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                 William H. Ledbetter, Jr., Judge
          James J. Ilijevich (Office of the Public
          Defender, on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Richard Cullen, Attorney General, on
          brief), for appellee.



     Robert Eugene Lee contends that the evidence is insufficient

to support his conviction of obtaining money by false pretenses

with the intent to defraud in violation of Code § 18.2-178.    We

agree, and reverse.

                                  I.

     Margaret Dahmen rented rooms in her Spotsylvania County home

to Lee and his wife, Carol Lee.    On or about November 1, 1995,

Carol told Mrs. Dahmen that she had inherited some money and

showed Mrs. Dahmen a letter from a New York attorney reporting a

possible distribution to her.    Lee was not present at this

conversation.   Carol asked whether she could deposit the funds in

Mrs. Dahmen's savings account.    Mrs. Dahmen agreed and gave Carol

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
her account number so that the attorney could wire the funds

directly to that account.

        On November 7, 1995, Carol told Mrs. Dahmen, in the presence

of Lee, that money had been wired to the account.    Carol then

asked for a check for $2,500 so that she could pay a medical

bill.    Mrs. Dahmen handed a blank check to Carol who handed it to

Lee.    Lee then filled out the check at Mrs. Dahmen's request, and

she signed it.
        Two days later, Carol told Mrs. Dahmen that she and Lee were

going away for a few days.    Mrs. Dahmen never saw them again.

She discovered thereafter that no money had been deposited into

her account on behalf of Carol.    However, the check made payable

to Lee had been cashed.

                                  II.

        The judgment of a trial court sitting without a jury will

not be set aside unless it is plainly wrong or without evidence

to support it.     Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).    When the sufficiency of the evidence is

challenged on appeal, "it is our duty to look to that evidence

which tends to support the verdict and to permit the verdict to

stand unless plainly wrong."     Snyder v. Commonwealth, 202 Va.

1009, 1116, 121 S.E.2d 452, 457 (1961).

        Viewing the evidence in the light most favorable to the

Commonwealth, Martin, 4 Va. App. at 443, 358 S.E.2d at 418, we

find that the Commonwealth failed to prove beyond a reasonable



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doubt that Lee knew that his wife's money had not been deposited

in Mrs. Dahmen's account.   "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) (en banc) (citation omitted).
     Lee made no representation to Mrs. Dahmen concerning the

inheritance or its deposit into her savings account.    Thus, the

Commonwealth was required to produce circumstantial or direct

evidence proving that he had such guilty knowledge as to prove

his knowledge of the falsehood at the time Carol made the false

statement.   See Sult v. Commonwealth, 221 Va. 915, 275 S.E.2d 608

(1981) (holding evidence failed to show principal's knowledge of

fraud); Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980) (concluding that participation in purchase, sale and

transfer of vehicles showed knowledge); Cunningham v.
Commonwealth, 219 Va. 399, 402-03, 247 S.E.2d 683, 685 (1978)

(finding that defendant concealed fact that she stopped payment

on check to obtain possession of car).

     No such knowledge, inferred or otherwise, was shown.      Lee's

mere presence and filling out the check at Mrs. Dahmen's request

did not prove that he had knowledge of the underlying deception

at the time Carol made the false statements.    See Riegert v.




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Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 808 (1977)

(fraudulent intent must have existed at the time the false

statement was made).   While public policy seeks free and

confidential communication between husband and wife, see Edwards

v. Commonwealth, 20 Va. App. 470, 474-75, 457 S.E.2d 797, 799-800

(1995), we cannot presume that information known to one is known

to the other.

     Accordingly, the conviction is reversed and the charge is

dismissed.
                                         Reversed and dismissed.




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