Lonnie Jerome Gaines, III v. Commonwealth of VA ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
LONNIE JEROME GAINES, III
MEMORANDUM OPINION * BY
v. Record No. 1354-98-4 JUDGE JAMES W. BENTON, JR.
JULY 6, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge acquitted Lonnie Jerome Gaines, III, of
receiving stolen goods, the charge contained in Count I of the
indictment, and convicted him of obtaining money by false
pretenses in violation of Code § 18.2-178, the charge in Count II
of the indictment. Gaines contends the evidence was insufficient
to support the conviction because (1) he made no false
representation, (2) the owner was not induced by a false
representation to transfer money, and (3) the judgment of
acquittal on the charge of receiving stolen goods precluded the
conviction of obtaining money by false pretenses. The
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth concedes that the evidence was insufficient to prove
the owner was induced by a false representation to transfer money.
For the following reasons, we reverse the conviction.
I.
Lonnie Jerome Gaines, III, was indicted and tried on two
indictments, charging obtaining money by false pretenses and
receiving stolen goods. The Commonwealth's evidence proved that
an employee of Nordstrom's Department Store at Montgomery Mall in
Maryland saw a young man, who was not Gaines, remove a tuxedo and
leave the store without paying for it. The employee followed the
young man out of the store, saw him enter a car, and noted the
car's description and license plate number. The employee notified
other Nordstrom stores to be alert for someone attempting to
return the stolen tuxedo. The tuxedo was size 48XL and had a
retail price of $995.
One and a half hours later, Donnie Martin and Gaines
approached a salesman employed at the Nordstrom's store in Tysons
Corner, Virginia. Martin removed a tuxedo from a bag and said he
wanted to return it. Martin told the salesman he wanted to return
the tuxedo because "it was given to him and . . . it's not his
right size." The salesman, who had been informed that a tuxedo,
size 48XL, had been stolen from the store at Montgomery Mall,
asked Martin for a driver's license. Gaines offered the salesman
his driver's license. The salesman accepted Gaines' driver's
license, went to an office, and called a security employee. When
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the security employee arrived, the salesman wrote Gaines' name and
address on the merchandise ticket. The salesman then returned to
the register and asked whether they wanted the refund in cash or
credited to a card. Gaines said cash. The salesman entered the
return on the cash register, escorted Gaines and Martin to
customer service, gave the cash register documents to a clerical
worker, and told the worker to give the money to Gaines. The
clerical worker gave Gaines an amount in excess of $1,000, which
represented the sales price of the tuxedo plus a refund of tax.
Acting on a description of the car used by the thief at the
Montgomery Mall store and information that two persons were
returning the stolen tuxedo to the Tysons Corner store, Officers
Bennett and Turner located the car and waited. The officers saw
Martin exit the store and enter the car on the passenger side.
Gaines then exited the store "carrying money" and sat on the
driver's seat. The officers arrested Gaines and Martin and
recovered $400 in cash from the glove compartment in front of
Martin and $644 from the floor below Gaines.
When the officers read Miranda warnings to Gaines, Gaines
told the officers that Martin, his friend, had asked Gaines to
meet Martin at Montgomery Mall and give Martin a ride. According
to Gaines, as he arrived at the mall, "Martin jumped in the car
with a suit in his hand and said let's go, let's go." Gaines said
Martin asked him to return the suit to another Nordstrom's store.
According to Gaines, when he asked why Martin did not return the
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tuxedo to the Montgomery Mall store, Martin replied that he did
not know and that he did not have identification. Martin said the
tuxedo was worth $900 and offered Gaines $500 if he returned the
suit. When the officers asked Gaines "didn't you think the suit
could have been stolen," Gaines responded that he "thought
something was probably wrong with the suit, but [he] needed the
money."
As Gaines' witness, Martin testified at trial that he
telephoned Gaines for a ride from Montgomery Mall. As Gaines
arrived, Martin stole the suit and left the mall. After he
entered Gaines' car, he told Gaines that the tuxedo was a gift
from Martin's father, and he asked Gaines to drive to Tysons
Corner. He told Gaines he wanted to return the tuxedo but had no
identification. Martin testified that he made no offer to Gaines
and that Gaines returned the tuxedo as a favor. Martin further
testified that when the police arrived, Gaines was in the process
of counting and handing the money to him.
The trial judge "believe[d] beyond a reasonable doubt that
[Gaines] knew that the suit was stolen . . . [because it] doesn't
make any sense otherwise." After making that finding, the trial
judge convicted Gaines of the obtaining money by false pretenses
indictment. However, the trial judge acquitted Gaines on the
charge of receiving stolen goods indictment. This appeal
followed.
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II.
Gaines and the Commonwealth agree upon the elements of the
offense.
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). Gaines contends, however, that the evidence
failed to prove the latter two elements. The Commonwealth
concedes that because the Nordstrom's employee knew the tuxedo
was stolen, the evidence failed to prove that any Nordstrom's
employee was induced by false pretenses to pay money. However,
the Commonwealth contends that Gaines did not preserve the other
argument for appeal.
We agree with the Commonwealth's argument that the record
contains no indication Gaines raised in the trial court the
argument that Martin, not Gaines, used false pretenses. Gaines'
argument on the motion to strike generally was that he was only
helping his friend and did not know the suit was stolen. "[I]t
is well established that the purpose of Rule 5A:18 is to require
a party to raise an issue in a timely fashion before the trial
judge so the [trial judge] has an opportunity to address the
issue and prevent unnecessary appeals." White v. Commonwealth,
21 Va. App. 710, 720, 467 S.E.2d 297, 302 (1996). The issue
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that Gaines now urges was not preserved in this manner.
Accordingly, we will not consider it. Rule 5A:18.
III.
Gaines also contends that the judgment of acquittal on the
charge of receiving stolen goods precludes the conviction on the
crime of false pretenses. The Commonwealth argues that Gaines
also failed to preserve that issue for appeal. We agree that
the record contains no indication that this issue was raised in
the trial court. Accordingly, we will not consider it on
appeal. Rule 5A:18.
For these reasons, we hold the evidence failed to prove
beyond a reasonable doubt that the false pretenses induced the
Nordstrom's employee to pay the money, which is an element of
the charged offense. Accordingly, we reverse the conviction.
See Wynne, 18 Va. App. At 460, 445 S.E.2d at 161.
Reversed.
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