COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Chief Judge Fitzpatrick, Judge Lemons and
\n Senior Judge Duff
\nArgued at Alexandria, Virginia<\/p>\n
GARY E. JEWEL
\n OPINION BY
\nv. Record No. 2899-97-4 JUDGE CHARLES H. DUFF
\n AUGUST 3, 1999
\nCOMMONWEALTH OF VIRGINIA<\/p>\n
FROM THE CIRCUIT COURT OF WARREN COUNTY
\nDennis L. Hupp, Judge<\/p>\n
Thomas D. Logie (Elwood Sanders, Jr.; Office
\nof the Public Defender; Public Defender
\nCommission, on briefs), for appellant.<\/p>\n
Eugene Murphy, Assistant Attorney General
\n(Mark L. Earley, Attorney General, on brief),
\nfor appellee.<\/p>\n
Gary E. Jewel, appellant, appeals his conviction for two
\ncounts of grand larceny by false pretenses. He argues the trial
\ncourt erred by allowing the Commonwealth to impeach him by using
\na prior conviction order, which indicated that he entered guilty
\npleas to two charges but did not contain the trial court’s
\nfindings of guilt or its imposition of a sentence. He also
\ncontends the trial court erred in refusing to give his proffered
\njury instruction concerning the elements of larceny by false
\npretenses. Finding no error, we affirm the convictions.<\/p>\n
– 2 –
\nFACTS
\n The evidence proved that appellant was the owner and
\npresident of a business called Quick Strike, Inc. (“Quick
\nStrike”). Appellant approached Robert E. Clayton, a certified
\npublic accountant, for a loan concerning this business.
\nAppellant represented to Clayton that he had several contracts
\nfor work but needed money to rent equipment to perform the work
\nfor these contracts. Appellant stated that he did not have time
\nto obtain financing through traditional loans and asked Clayton
\nif he knew anyone who could provide him a loan for one to two
\nmonths at an interest rate of 10% per month.
\n Appellant showed Clayton several “signed, executed
\ncontracts” for which the customers were allegedly waiting for
\nappellant to begin work. Clayton reviewed the price breakdown
\non the contracts and determined that appellant had calculated a
\nsufficient profit margin in the contracts in order to pay the
\nhigh interest rate on the loan.
\n One of the contracts appellant showed Clayton was signed by
\na “Peter Rebull” of Rebull and Associates. Appellant also gave
\nClayton a letter from Rebull which purported to represent
\nRebull’s authorization to use Clayton as manager of the accounts
\nreceivables and accounts payable for the contract. Clayton then
\nloaned appellant $8,000.<\/p>\n
– 3 –
\n Appellant later requested another loan from Clayton and
\nprovided Clayton with a copy of a contract signed by a “Robert
\nBarnhardt,” with Associated Environmental Services, Inc., for
\nwork to be performed for their client, Martin Marietta
\nCorporation (“Martin Marietta”). Appellant asked Clayton for
\n$20,000 to use to rent equipment in order to start the contract.
\nAppellant also provided Clayton with a letter purporting to
\nrepresent Martin Marietta’s authorization to use Clayton as
\nmanager of the accounts receivable and the accounts payable for
\nthe contract.
\n Appellant showed Clayton an invoice to Peter Rebull in the
\namount of $31,834 for work performed on that contract and asked
\nClayton to mail the invoice to Rebull. Clayton called the
\ntelephone number provided by appellant for Peter Rebull and
\nspoke with someone claiming to be Rebull. This person assured
\nClayton that the $31,834 would be paid within sixty days.
\n Clayton then made a second loan to appellant for $20,000.
\nClayton deposited a $20,000 cashier’s check in Quick Strike’s
\nbank account. The cashier’s check contained the following
\nnotation, “Re: Robert E. Clayton Martin Marietta Loan.”
\n Clayton testified that he “absolutely” would not have made
\nthe two loans to appellant if appellant had not provided him
\nwith copies of the two executed contracts.<\/p>\n
– 4 –
\n Clayton stated that he became concerned when payment on the
\nfirst loan became overdue. Appellant told Clayton that he would
\nhave Rebull call him, and Clayton received a recorded telephone
\nmessage from someone claiming to be Rebull. The man said he
\nwould pay Clayton when appellant completed certain tasks at the
\njob site. Clayton saved the recorded message and played the
\ntape recording for appellant’s answering service employee. The
\nanswering service employee testified that the voice on the tape
\nwas the voice of appellant’s son. She also identified the
\ntelephone number that appellant gave Clayton for Peter Rebull as
\nappellant’s cellular telephone number. She stated that, on
\nseveral occasions, she had called appellant’s cellular phone
\nnumber, and someone answered indicating that he was Peter
\nRebull. The Commonwealth presented evidence that the address
\nappellant gave Clayton for Peter Rebull was a fraudulent
\naddress.
\n Clayton eventually confronted appellant about his inability
\nto reach Rebull at the telephone number and address provided by
\nappellant. Appellant told Clayton that the information he gave
\nClayton was a “clerical error” and “an oversight.” Appellant
\nsaid he was not sure why he gave Clayton that telephone number
\nand address. Clayton testified that, eventually, appellant
\nadmitted to him that he “lied” about the loans.<\/p>\n
– 5 –
\n Robert Barnhardt, of Associated Environmental Services,
\ntestified that he never entered into a contract with Quick
\nStrike. Barnhardt stated that he sent a request to appellant’s
\ncompany for a quotation for a job but appellant’s company was
\nnot chosen to perform the work. Barnhardt testified that the
\nrequest would have contained his signature.
\n At the trial, appellant admitted that he provided the two
\n“contracts” to Clayton but testified that the Rebull contract
\nwas meant to be a “sample” or “example of a medium sized
\ncontract” for his company. He also testified that the Martin
\nMarietta contract was a “hypothetical” contract intended to show
\n“the size of the job that Quick Strike . . . could handle.”
\nAppellant admitted that he placed Barnhardt’s signature on the
\nMartin Marietta contract because “[i]t was a bogus sample
\ncontract.” Clayton testified that appellant did not give him
\nany documents that appellant described as a “sample” contract.
\nANALYSIS
\nI. Impeachment Evidence
\n Prior to the start of the trial, appellant filed a motion
\nin limine requesting that the trial court refuse to allow into
\nevidence appellant’s prior felony convictions from Loudoun
\nCounty. Although appellant pled guilty to the charges, he
\nargues that the trial court erred in allowing the Commonwealth
\nto use these convictions as impeachment evidence because the<\/p>\n
– 6 –
\norder from the Loudoun County Circuit Court does not indicate
\nthat the trial court found appellant guilty of the charges and
\nbecause the order does not contain sentencing information.
\nAppellant further asserts that the guilty pleas were not
\nsupported by the evidence.
\n The May 21, 1997 Loudoun County Circuit Court order
\nindicates that appellant entered guilty pleas to two felonies,
\nand the trial court accepted the pleas. The order indicates
\nthat appellant entered into a plea agreement in the case, and
\nthe Commonwealth presented “stipulated evidence” regarding the
\ncharges. The order further states that appellant presented no
\nevidence on his behalf. The trial court accepted appellant’s
\nguilty pleas as to two counts, ordered the preparation of a
\npresentence report, and set a sentencing date.
\n In Fields v. Commonwealth, 5 Va. App. 229, 234, 361 S.E.2d
\n359, 362 (1987), a witness had entered voluntary guilty pleas to
\ntwo felonies, which were accepted by the trial court. However,
\nat the time the witness testified in another trial, the court
\nhad not imposed its sentences for the prior convictions. Id. at
\n233, 361 S.E.2d at 361. Relying on the rationale in Lincoln v.
\nCommonwealth, 217 Va. 370, 228 S.E.2d 688 (1976), we held that
\n“for purposes of impeachment, [the witness] had the status of a
\nconvicted felon when he testified . . . .” Fields, 5 Va. App.
\nat 234, 361 S.E.2d at 362.<\/p>\n
– 7 –
\n In Lincoln, the issue was whether the trial court erred in
\nrefusing to give a jury instruction regarding the credibility of
\nconvicted felons. Two accomplices in a robbery testified
\nagainst the defendant. In describing the facts of the case, the
\nCourt stated that the witnesses had “previously entered guilty
\npleas and stood convicted, but not sentenced, for participating
\nin the robbery.” Lincoln, 217 Va. at 371, 228 S.E.2d at 689
\n(emphasis added). Although the Court found that the instruction
\nwas supported by the evidence, it was not reversible error to
\nrefuse it because the point was covered by other instructions.
\nSee id. at 375, 228 S.E.2d at 692.
\n In Dowell v. Commonwealth, 12 Va. App. 1145, 1147-48, 408
\nS.E.2d 263, 265 (1991), aff’d on reh’g en banc, 14 Va. App. 58,
\n414 S.E.2d 440 (1992), we emphasized that the circumstances in
\nFields, where the witness had entered a voluntary guilty plea,
\nwere distinguishable from a case where a witness had pled not
\nguilty, had been convicted by a jury but had not yet been
\nsentenced. We stated that, because a judge could set aside a
\njury verdict, “[t]he availability of such a remedy detracts from
\nthe finality of the jury’s verdict and consequently the
\nreliability of such a verdict for impeachment purposes.” Id. at
\n1149, 408 S.E.2d at 265. Thus, the holding in Dowell did not
\nlimit the Fields decision.<\/p>\n
– 8 –
\n Appellant contends the May 21, 1997 order is “quite clear”
\nthat, when the guilty pleas were accepted, the trial court made
\n“no finding of guilt.” However, the order indicates that the
\ncourt accepted the pleas. “‘[A] voluntary and intelligent plea
\nof guilty by an accused is, in reality, a self-supplied
\nconviction authorizing imposition of the punishment fixed by
\nlaw.'” Id. at 1148, 408 S.E.2d at 265 (citation omitted)
\n(emphasis added). “‘A plea of guilty that is voluntarily and
\nintelligently made by an accused is a conviction and nothing is
\nleft but the imposition of the prescribed punishment.'” Id.
\n(citation omitted). Therefore, appellant’s argument is without
\nmerit.
\n Appellant also cites several cases that do not address the
\ninstant issue but address the use of prior convictions for other
\npurposes. See McBride v. Commonwealth, 24 Va. App. 30, 480
\nS.E.2d 126 (1997) (involving what constitutes a prior conviction
\nfor a second offense DUI conviction); Bellinger v. Commonwealth,
\n23 Va. App. 471, 477 S.E.2d 779 (1996) (involving what
\nconstitutes “records of conviction” for admission of prior
\ncriminal convictions into evidence at the sentencing phase).
\nThese cases did not involve the impeachment of a defendant by a
\nshowing of prior convictions, and the rules regarding
\nimpeachment did not apply in these cases. See 1 Charles E.
\nFriend, The Law of Evidence in Virginia 109 (1993) (“It is<\/p>\n
– 9 –
\nextremely important that the rules regarding the impeachment of
\nan accused by a showing of prior convictions be kept distinct
\nfrom other rules which permit the showing of prior criminal
\nactivity by an accused.”). Therefore, the cases are inapposite.
\n Appellant also contends Code ? 19.2-307 requires that the
\norder of conviction must contain a finding of guilt by the trial
\njudge. The order in appellant’s case does not include some of
\nthe elements listed in Code ? 19.2-307, which is entitled
\n“Contents of judgment order.” The order in appellant’s case
\ndoes not contain a statement as to whether the case was tried by
\njury, whether the Commonwealth and the court concurred in the
\nwaiver of a jury trial, or the sentence. The order does not
\ncontain a “verdict or findings and the adjudication and
\nsentence.” Code ? 19.2-307. However, Code ? 19.2-307 addresses
\nsentencing orders and is located in that part of the Code that
\ndiscusses sentence, judgment, and execution of sentence. The
\norder in appellant’s case specifically ordered the preparation
\nof a presentence report and scheduled a future date for
\nsentencing. Thus, it was not the final sentencing order for the
\nmatter. However, the document is a formal court order, signed
\nby a judge, setting forth appellant’s guilty pleas, stating that
\nthe Commonwealth and appellant entered into a plea agreement
\nconcerning the charges, and stating the acceptance of the guilty
\npleas by the judge. Furthermore, the Commonwealth did not seek<\/p>\n
– 10 –
\nto use the document in the sentencing phase of appellant’s trial
\nin accordance with Code ? 19.2-295.1.
\n Moreover, Code ? 19.2-283, entitled, “How accused may be
\nconvicted of felony,” states, in pertinent part, that “[n]o
\nperson shall be convicted of a felony, unless . . . by his
\nplea . . . accepted and recorded by the court . . . .” The
\norder clearly states that the trial court accepted appellant’s
\nguilty pleas. Therefore, we find that, “for purposes of
\nimpeachment, [appellant] had the status of a convicted felon
\nwhen he testified.” Fields, 5 Va. App. at 234, 361 S.E.2d at
\n362.
\n Appellant also contends that constitutional principles
\ndictate a different result where the person to be impeached is
\nthe defendant as opposed to a mere witness. However, none of
\nthe United States Supreme Court cases cited by appellant
\naddresses the issue of the use of a prior conviction to impeach
\neither a witness or a defendant. Furthermore, none of the cases
\ncited by appellant addresses whether different rules apply for
\nthe impeachment of a defendant as opposed to a witness.
\n Code ? 19.2-269 provides: “A person convicted of a felony
\nor perjury shall not be incompetent to testify, but the fact of
\nconviction may be shown in evidence to affect his credit.” The
\nVirginia Supreme Court has interpreted the former version of the
\nstatute as follows:<\/p>\n
– 11 –
\n The statute permits the examination of
\na defendant as to any prior felony
\nconvictions, should he become a witness in
\nhis own behalf. The sole purpose of such
\ninquiry is to attack the defendant’s
\ncredibility as a witness. His answer is not
\nto be considered as evidence of his guilt or
\ninnocence of the crime charged, and the jury
\nis usually so instructed.
\n We construe the statute to mean that
\nthe fact of conviction of a felony may be
\nshown by the Commonwealth, but the name of
\nthe felony, other than perjury, and the
\ndetails thereof may not be shown. We are
\nnot unaware that some prejudice rises
\nagainst a defendant when it is disclosed
\nthat he has been convicted of a felony, but
\nits probative value as to his credit
\noutweighs the prejudicial effect.
\nHarmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51
\n(1971). Thus, the Court interpreted the statute to allow the
\nimpeachment of defendants and other witnesses by this method.
\n The trial transcript indicates that the Commonwealth’s
\nAttorney asked appellant, “[I]t is true, is it not, that you
\nhave two prior felonies at this point?” Appellant replied,
\n“Yes, Sir, I do.” Nothing further was said about the
\nconvictions. Thus, the Commonwealth’s use of the evidence
\ncomplied with Harmon. Accordingly, the trial court did not err
\nin allowing the Commonwealth to impeach appellant by using the
\nevidence of his prior convictions.
\nII. Jury Instruction
\n Appellant argues that the trial court erred in granting Jury
\nInstruction No. 7 concerning the elements of larceny by false<\/p>\n
– 12 –
\npretenses. He also argues that the trial court erred in refusing
\nto give his proffered Jury Instruction A regarding the elements of
\nthe offense.
\n Appellant first argues that the granted instruction failed to
\ninform the jury that one of the elements of the offense was that
\nappellant intended to permanently deprive the owner of his
\nproperty at the time the money was advanced. Thus, appellant
\nargues, the granted instruction misled the jury to believe that
\nappellant’s initial receipt of the money satisfied the requirement
\nof proof that an actual fraud was committed. Appellant contends
\nthat the requirement of actual fraud includes the larceny element
\nof intent to permanently deprive the owner of his property.
\n The elements of larceny by false pretenses are:
\n“‘(1) an intent to defraud; (2) an actual
\nfraud; (3) use of false pretenses for the
\npurpose of perpetrating the fraud; and (4)
\naccomplishment of the fraud by means of the
\nfalse pretenses used for the purpose, that
\nis, the false pretenses to some degree must
\nhave induced the owner to part with his
\nproperty.'”
\nRiegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807
\n(1977) (citation omitted). Thus, there is no requirement that the
\nowner must be permanently deprived of the property.
\n The granted instruction stated, in pertinent part:<\/p>\n
The defendant is charged with the crime
\nof larceny by obtaining property by false
\npretenses. The Commonwealth must prove
\nbeyond a reasonable doubt each of the
\nfollowing elements of that crime:<\/p>\n
– 13 –
\n 1. That the defendant knowingly and
\nintentionally made a false representation of
\na past event or an existing fact; and
\n 2. That when the representation was
\nmade, the defendant had an intent to defraud
\nthe owner or possessor by causing him to
\npart with the possession of and title to his
\nproperty; and
\n 3. That because of the false
\nrepresentation, the owner or possessor
\nparted with the possession of and title to
\nhis property; and
\n 4. That the property taken was worth
\n$200.00 or more.
\nNothing in the wording of the granted instruction indicates that
\n“the receipt of the funds is itself the fraud,” regardless of
\nappellant’s intent. Moreover,
\n[t]he gravamen of the offense, . . . is the
\nobtainment of ownership of property, by
\nfalse representations or pretenses. But
\nthere is no requirement that the intended
\nvictim suffer actual pecuniary loss.
\nUltimate financial gain or loss to the
\nvictim is immaterial.
\n The crime is complete when the fraud
\nintended is consummated by obtaining the
\nproperty sought by means of the false
\nrepresentations, and the offense is not
\npurged by ultimate restoration or payment to
\nthe victim. It is sufficient if the fraud
\nof the accused has put the victim in such a
\nposition that he may eventually suffer loss.
\nQuidley v. Commonwealth, 221 Va. 963, 966, 275 S.E.2d 622,
\n624-25 (1981). Therefore, “the crimes [were] complete” when
\nClayton surrendered money to appellant, in reliance upon
\nappellant?s false representations that he had contracts with the
\ntwo companies. Thus, the granted instruction properly<\/p>\n
– 14 –
\ninstructed the jury on these elements of the offense.
\nAccordingly, appellant’s arguments are without merit.
\n Appellant also contends the granted instruction “misl[ed]\nthe jury into believing that evidence of nonpayment is
\nsufficient evidence of intent to defraud . . . .” He further
\nargues that the granted instruction “eliminate[d] the need of
\nthe Commonwealth to prove . . . that [appellant] must have had
\nthe intent to defraud at the time he received the loans” and
\npermitted the jury to find intent to defraud from “the mere fact
\nof nonpayment.”
\n However, the jury was clearly instructed in the second
\nelement of the granted instruction that the Commonwealth had to
\nprove that appellant had an intent to defraud when the
\nrepresentations were made. Nothing in the language of the
\ninstruction directed the jury to find the intent to defraud from
\nappellant’s failure to recompense Clayton for the “loans.”
\nIndeed, the granted instruction made no reference to repayment,
\nnonpayment, or the intent to repay Clayton.
\n Furthermore, the granted instruction complied with the
\nholding in Lewis v. Commonwealth, 28 Va. App. 164, 172, 503
\nS.E.2d 222, 226 (1998). In Lewis, we stated: “the jury should
\nhave been instructed that the intent to defraud must have
\nexisted at the time the false representations were made . . . .”<\/p>\n
– 15 –
\n “A reviewing court’s responsibility in reviewing jury
\ninstructions is ‘to see that the law has been clearly stated and
\nthat the instructions cover all issues which the evidence fairly
\nraises.'” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
\nS.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
\n503, 290 S.E.2d 856, 858 (1982)). Jury Instruction No. 7
\nclearly stated the elements of larceny by false pretenses and
\ncovered issues raised by the evidence. Moreover, the
\ninstruction was not misleading concerning the intent to defraud
\nelement. Therefore, the trial court did not err in granting
\nJury Instruction No. 7.
\n For these reasons, we affirm the convictions.
\n Affirmed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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