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KIRK v. COMMONWEALTH OF VA


KIRK v. COMMONWEALTH OF VA

(unpublished)


DECEMBER
8, 1998

Record
No. 2735-97-4

 

NATHAN
B. KIRK

v.

COMMONWEALTH
OF VIRGINIA

 

MEMORANDUM
OPINION
[1] BY JUDGE DONALD
W. LEMONS

FROM THE
CIRCUIT COURT OF FAIRFAX COUNTY

Michael
P. McWeeny, Judge

Present:
Judges Annunziata, Lemons and Senior Judge Hodges

Argued
at Alexandria, Virginia

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 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 Sect. 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

(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 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.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

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