Lead Opinion
At the conclusion of a jury trial, Angela Maye Holt was convicted of obtaining money by false pretenses in violation of Code § 18.2-178 and embezzlement in violation of Code § 18.2-111. She appealed both convictions. On appeal, Holt argued that the evidence failed to establish that she obtained money by false pretenses because it did not prove: 1) that she intended to defraud the victim, or 2) that she made a false representation to him of any past or existing fact. While Holt acknowledged that she failed to make any argument at trial concerning the lack of proof of any false representation, she requested this Court to review the issue under the ends of justice exception to Rule 5A:18. Additionally, Holt argued that the evidence was insufficient to support her conviction of embezzlement because it failed to prove that she was entrusted with the property at issue.
A panel of this Court unanimously reversed Holt’s embezzlement conviction and dismissed the indictment charging her with that offense. Holt v. Commonwealth, No. 1252-14-1,
Holt petitioned this Court for a rehearing en banc regarding her false pretenses conviction, only requesting a review of the applicability of the ends of justice exception to her case and the sufficiency of the evidence establishing that she made a false representation of a past or existing fact. The Commonwealth did not file a petition requesting a rehearing en banc concerning Holt’s embezzlement conviction. We granted Holt’s petition for rehearing regarding the issues she present
I. BACKGROUND
“In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court[, and] accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth,
Holt and Anthony Banks, the victim in the present case, began dating in 2012. When the relationship began, Banks was only seventeen years old. Holt was twenty-nine years old at that time. In the spring of 2013, Banks agreed to purchase Holt’s Chevrolet Suburban to help her make child support payments. Banks began making periodic payments to Holt for the purchase of the vehicle in March 2013. He made a payment to Holt each time he received a paycheck. Often, Banks would give his entire paycheck to Holt to cover the couple’s living expenses as well as his vehicle payment.
Over the course of approximately five months, Banks paid Holt $900 for the Suburban, and Holt signed the title of the vehicle over to him on July 29, 2013. With Holt’s permission, Banks chose not to register the transaction with the Department of Motor Vehicles (“DMV”) because it was cheaper for him to keep the vehicle on Holt’s automobile insurance policy rather than transfer it to one of his own. Although both parties occasionally drove the Suburban before July 29, 2013, Banks testified that he had physical possession of the vehicle after that date.
Following the altercation, Banks decided to record his title to the Suburban with the DMV in order to regain possession of the vehicle. When he arrived at the DMV three days later, he learned that Holt had obtained a replacement title to the vehicle on August 3, 2013, the day following the altercation, by claiming that the original title to the vehicle had been lost or stolen. Holt’s replacement title rendered Banks’s original title invalid, and neither the Suburban nor the $900 that Banks paid to Holt were ever returned to him. Holt married Smalley approximately four months later in December 2013.
At trial, neither Banks nor Holt testified about any specific statements that Holt made to induce Banks to purchase the vehicle. Banks explained that he needed a vehicle to drive to work and that he agreed to buy Holt’s Suburban to help her make payments on her child support obligations. Holt denied that she ever sold the vehicle to Banks, denied that he paid her money for the vehicle, and claimed that she signed the title so that a third party could purchase the vehicle from her.
In closing argument, the Commonwealth acknowledged that it had to prove that Holt made a false representation of a past or existing fact that induced Banks to purchase the Suburban in order to prove that Holt obtained money by false pretenses. The Commonwealth then argued that Holt had falsely represented “that she would give over the car to Mr. Banks at the end of the transaction.”
II. ANALYSIS
On rehearing en banc, we must determine whether the ends of justice exception to Rule 5A:18 allows us to address the merits of Holt’s sufficiency argument under the facts and circumstances of this case. As a preliminary matter, however, we first address certain procedural issues related to en banc review by this Court.
A. EN BANC REVIEW
In Ferguson v. Commonwealth,
Portions of Ferguson are inconsistent with Rule 5A:35, the rule setting forth the procedure for en banc review.
When all or part of a petition for rehearing en banc is granted, the clerk of this Court shall notify all counsel promptly. The mandate entered is stayed as to all issues decided by the panel pending the decision of the Court en banc. The appeal is reinstated on the docket of the Court for oral argument only as to issues granted.
Rule 5A:35(b) (emphasis added). Subpart (1) of the same subsection, entitled “Issues Considered Upon Rehearing En Banc,” states:
Only issues raised in the petition for rehearing en banc and granted for rehearing or included in the grant by the Court on its own motion are available for briefing, argument, and review by the en banc Court. The Court may grant a petition in whole or in part. Any issue decided by a panel of this Court not subject to a petition for rehearing en banc remains undisturbed by an en banc decision.
Rule 5A:35(b)(l).
While Ferguson and Rule 5A:35 are consistent concerning the scope of the issues considered by this Court on en banc review, they differ concerning the effect of granting an appellant’s petition for rehearing en banc. Ferguson expressly held that a panel decision is vacated by the grant of en banc review, whereas Rule 5A:35 states that the mandate of the panel is stayed by such a grant.
To clarify this inconsistency, we hold that the grant of en banc review stays a panel decision pending review of those issues for which rehearing en banc has been granted but does
B. APPLICATION OF THE ENDS OF JUSTICE EXCEPTION
Code § 18.2-178CA) provides, in pertinent part, that “[i]f any person obtain, by any false pretense or token, from any person, with intent to defraud, money, a gift certificate or other property that may be the subject of larceny, he shall be deemed guilty of larceny thereof....” 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.”
Riegert v. Commonwealth,
A criminal false pretense has been defined as follows:
“[T]he false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another*209 without compensation. According to the definition, the false pretense must be a representation as to an existing fact or past event. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within the statute, even though they induce the party defrauded to part with his property. But if false representations are made, some of which refer to existing facts or past events, while others refer solely to future events, a conviction may be had if it is shown that any of the representations as to existing facts induced the complaining witness to part with his property.”
Parker v. Commonwealth,
Holt argues that the Commonwealth failed to prove that she made a false representation of an existing fact or past event that induced Banks to part with the $900 he paid for the Suburban. Holt contends that even if she falsely represented that she would sell the Suburban to Banks, such a representation constituted a promise or a reference to a future event, and therefore, was insufficient to support her conviction. While Holt concedes that she did not present this argument to the trial court, she requests that we consider this issue under the “ends of justice” exception to Rule 5A:18.
Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “The ends of justice exception is narrow and is to be used sparingly,” and applies only in the extraordinary situation where a miscarriage of justice has occurred. Redman v. Commonwealth,
“The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Brittle v. Commonwealth,
Holt’s appellate argument misses “the distinction between lack of proof of an element and affirmative proof that the element did not occur.” Phan Le v. Commonwealth,
While the Commonwealth may have failed to prove a specific representation made by Holt referencing an existing fact or past event, the record does not affirmatively prove that Holt failed to make such a representation. Although Holt’s promise to deliver the Suburban to Banks after he paid the full purchase price for the vehicle referred to a future event, her promise regarding future action does not preclude the existence of another falsely represented past or existing fact. At best, the Commonwealth’s failure to present additional evidence concerning the specific false pretenses that Holt used to defraud Banks only demonstrates that a miscarriage of justice may have occurred, not that a miscarriage of justice did occur. See Redman,
As Banks and Holt were involved in a romantic relationship and they lived together, Holt had ample opportunity to falsely represent specific existing facts about the Suburban to Banks during the time that he made payments for the vehicle. Furthermore, the evidence presented in this case implied that Holt intended to take advantage of Banks. When Holt and Banks began their romantic relationship, Holt was more than ten years older than Banks and he was a minor. When Smalley was released from incarceration, Holt quickly rekindled her romantic relationship with him and they were married within months. Although she signed the title of the Suburban over to Banks, Holt regained both possession of and title to the vehicle within days of doing so. Based on these circumstances, the jury could have reasonably inferred that Holt’s relationship was a pretext on her part that allowed her to take advantage of Banks’s relative youth and inexperience to obtain financial support from him. The same inference also implied that Holt was likely to relate false statements to Banks to encourage him to purchase the Suburban.
Moreover, the record in this case actually implies that Holt made a false representation concerning an existing fact. She represented that the Suburban was actually for sale at the
In short, Holt’s argument assumes that she did not make any other representations to Banks about the Suburban beyond her promise to transfer ownership of the vehicle to him at a later date. This assumption is not affirmatively supported by the record. Banks did not testify about the specific representations that Holt made to him that convinced him to buy the Suburban, and Holt denied that the transaction occurred. As such, the record fails to affirmatively establish that Holt did not make additional false statements and, by doing so, commit a criminal offense. Based on these circumstances, we cannot conclude that a clear injustice has occurred that would warrant the application of the ends of justice exception to Rule 5A:18.
In the present ease, the record simply does not contain affirmative evidence establishing Holt’s innocence or the lack of a criminal offense. Accordingly, we decline to apply the ends of justice exception to Rule 5A:18 to her argument, and therefore, do not consider her argument that the evidence was insufficient to prove that she used false pretenses to perpetrate the fraud at issue in this case.
III. CONCLUSION
For the reasons previously stated, we conclude that the ends of justice exception to Rule 5A:18 does not apply under the facts and circumstances of this case. Therefore, we do not
Affirmed.
Notes
. Despite the Commonwealth’s erroneous position at trial, we note that an appellate court’s examination "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.”
. Holt’s closing argument, as well as the arguments she presented in her motions to strike, focused on her lack of fraudulent intent and Banks’s failure to entrust her with the Suburban at the time of the alleged embezzlement. She never argued that the Commonwealth failed to prove that she made a false representation of a past or existing fact.
. Rule 5A:35 was substantially amended in 2010, two years after the decision in Ferguson, to include the language quoted in this opinion.
. We also reverse Glenn,
. While we have also applied the ends of justice exception in cases in which juries were not properly instructed on the elements of the charged offense, see, e.g., Jimenez v. Commonwealth,
Concurrence Opinion
concurring, in part, and dissenting, in part.
The multiple protections which surround an accused in our criminal justice system are often mystifying to observers trained in other disciplines. We justify them by our overriding concern that no innocent person will be convicted in error.... Abhorrence of conviction of the innocent is not only the bedrock upon which our criminal justice system rests, it is also fundamental to the public perception of its fairness. Justice must not only be done; it must be seen to be done. A system which is perceived to be tolerant of the danger that an innocent person has been convicted, in order to punish him for some other act of which he is suspect, will forfeit public confidence.
Odum v. Commonwealth,
I believe that Justice Russell’s prudent concern for the integrity of our judicial system reflects the prism through which this ease must be viewed. It is without question the Commonwealth failed to prove that Angela Maye Holt was guilty of the crime the Commonwealth accused her of committing.
Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “The ends of justice exception is narrow and is to be used sparingly,” and applies only in the extraordinary situation where a miscarriage of justice has occurred. Redman v. Commonwealth,
Code § 18.2-178(A) provides, in pertinent part, that “[i]f any person obtain, by any false pretense or token, from any person, with intent to defraud, money, a gift certificate or other property that may be the subject of larceny, he shall be deemed guilty of larceny thereof....” “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 evidence in this case affirmatively establishes that two elements of the offense did not exist: no fraud actually occurred and, even if it did, Holt did not make a false pretense to perpetrate the fraud. Thus, I believe Holt has met her burden of establishing that a miscarriage of justice has occurred and that our consideration of her appeal under the ends of justice exception is warranted.
Holt was indicted for obtaining Banks’s money by allegedly falsely representing that she would deliver the Suburban to him when the final payment was made. The date of the offense in the amended indictment was March 2013 through July 29, 2013. The evidence, considered in the light most favorable to the Commonwealth, established that the sale agreement between Holt and Banks was made in March 2013 and that Banks completed payment on the Suburban in July 2013. Holt’s mother testified on behalf of the Commonwealth that on several occasions she witnessed Banks making payments on the car.
Banks testified that in exchange for the $900 he paid, he had sole possession of the Suburban after July 29, 2013 and that Holt signed the title over to him on that day. Banks further testified that the title, which was introduced into evidence, was signed by Holt in his presence and stated the terms of the sale as $900. On July 29, 2013, Banks received both possession of and title to the Suburban. Thus Holt fulfilled her part of the agreement.
Simply put, the Commonwealth provided no evidence that by means of a false representation Holt obtained $900 from Banks without compensation. See Parker v. Commonwealth,
Further, even if I were to conclude to the contrary, the Commonwealth’s evidence affirmatively established that Holt did not obtain the purchase money by use of a false pretense. A criminal false pretense has been defined as “the false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation.” Parker,
[F]or one to be guilty of the crime of larceny by false pretense, he must make a false representation of an existing fact with knowledge of its falsity and, on that basis, obtain from another person money or other property which may be the subject of larceny, with the intent to defraud.
The only false representation alleged by the Commonwealth was that Holt never intended to deliver the Suburban in the future. The Commonwealth specifically argued that “[the] false representation was that she [Holt] would give over the car to Mr. Banks at the end of the transaction.” (Emphasis added). Even if one were to assume that Holt had no intention of delivering the Suburban to Banks as promised, that intent cannot be the basis for false pretense. The Supreme Court has recognized that even if the promise “induce[d] the party defrauded to part with his property” it is not a false pretense because it was a “mere promise[ ] or statement ] of intention with reference to future events.” Parker,
“Accordingly, there was error in the judgment appealed from and application of the ends of justice exception is necessary to avoid a grave injustice.” Id. I would reverse and dismiss the indictment.
. I recognize that Holt’s actions in obtaining a duplicate title from the DMV quite possibly constituted a criminal act. See Code §§ 46.2-105.1, 46.2-105.2 and 46.2-606. However, for reasons not apparent from the record, the Commonwealth did not elect to prosecute her for any offense other than embezzlement and larceny by false pretenses.
. I concur in Part 11(A) of the majority opinion addressing the scope of en banc review.
. In fact, the only reason Banks did not obtain a title in his name was his decision to keep the car insured under Holt’s insurance policy.
. Recognizing that this future promise could not constitute a false pretense under our existing case law, the majority reasons that because Holt and the victim were engaged in a romantic relationship, she might have made other undisclosed false representations to the victim. This ignores the express statement of the Commonwealth's Attorney that the false representation was her promise to deliver the car once it was paid for. Thus, this is not a case where we are left to speculate as to whether the Commonwealth simply forgot to introduce evidence to establish the existence of a false pretense. Rather, this is a case where the Commonwealth simply misunderstood the legal definition of a false pretense.
Alternatively, in an attempt to obviate the Commonwealth’s misunderstanding of the law, the majority also reasons that "the record in this case actually implies that Holt made a false representation of an existing fact [by misrepresenting] that the Suburban was actually for sale_" Supra at 211,