Samuel Aaron Brabson v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia
SAMUEL AARON BRABSON
MEMORANDUM OPINION * BY
v. Record No. 2498-08-2 JUDGE WILLIAM G. PETTY
MARCH 2, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
John B. Russell, Jr. (DurretteBradshaw, PLC, on brief), for
appellant.
Alice T. Armstrong, Assistant Attorney General II (William C.
Mims, Attorney General, on brief), for appellee.
Following a bench trial, Samuel Aaron Brabson was convicted of one count of larceny by
false pretenses and one count of attempted larceny by false pretenses, in violation of Code
§§ 18.2-178 and -26. Brabson now appeals those convictions, arguing that the evidence
presented in the trial court was insufficient to prove his guilt. We disagree with Brabson, and
affirm his convictions.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of these narrow
questions presented on appeal. We view those facts and incidents in the “light most favorable”
to the Commonwealth, as the prevailing party below, Finney v. Commonwealth, 277 Va. 83, 87,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
671 S.E.2d 169, 172 (2009), and we grant to it all fair inferences flowing therefrom, Huffman v.
Commonwealth, 51 Va. App. 469, 470, 658 S.E.2d 713, 713 (2008).
In 2005, Brabson was involved in a minor traffic accident, which he claimed aggravated a
pre-existing spinal injury and left him unable to walk. Following the accident, Brabson filed an
insurance claim with his automobile insurance carrier, Amica Mutual Insurance Company, and
sought and received various benefits from the Virginia Department of Rehabilitative Services
(DRS). After an insurance company employee performed a routine “activity check” on Brabson,
the company became suspicious and hired a private investigator to observe Brabson and
determine whether he was truly paralyzed. Following an extensive investigation, Brabson was
indicted and tried for one count of larceny by false pretenses and one count of attempted larceny
by false pretenses. The evidence presented at trial established that Brabson was not only capable
of performing routine household chores, but also that he engaged in more strenuous activities
such as mountain hiking and dancing. Brabson was convicted, and this appeal followed.
II.
A. Larceny By False Pretenses
Brabson challenges his conviction for larceny by false pretenses on the grounds that he
“never obtained title to any of the property or services he received from the Department of
Rehabilitative Services.”
In order to convict an individual for larceny by false pretenses in violation of Code
§ 18.2-178, 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.’” Reigert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803,
808 (1977) (quoting Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717
(1976)). In addition, the Commonwealth must prove that the defendant obtained not only
-2-
possession of, but title to the property. Cunningham v. Commonwealth, 219 Va. 399, 402, 247
S.E.2d 683, 685 (1978). “The gravamen of the offense . . . is the obtainment of ownership of
property, by false representations or pretenses.” Quidley v. Commonwealth, 221 Va. 963, 965,
275 S.E.2d 622, 624 (1981) (citing R. Perkins, Criminal Law 306 (2d ed. 1969)).
Thus, Brabson’s interpretation of the law is correct: the Commonwealth was required to
prove that he obtained not just possession, but actual ownership, of the property that he stole by
false pretenses. The indictment alleged the theft of three separate and distinct items—a
computer and accompanying software, rehabilitative services from a physical therapist, and a
wheelchair. Brabson argues that because the computer and computer software were only lent to
him by DRS, he never obtained title to those items. In addition, he argues that he never received
title to the payments for the rehabilitative services. However, Brabson conceded both at trial
during closing argument and on brief that he received title to the wheelchair. The theft of this
item alone is sufficient to support the allegations contained in the indictment. Thus, the evidence
is sufficient to support Brabson’s conviction for one count of larceny by false pretences. 1
B. Attempted Larceny by False Pretenses
Brabson also argues that the evidence at trial was insufficient to support his conviction of
attempted larceny by false pretenses because “[t]he representations that [he] made to a third
party, which were indirectly relayed to his attorney and incorporated into an insurance settlement
demand without his knowledge do not constitute an attempt to commit larceny by false
pretenses.” As explained below, we disagree.
1
Brabson’s question presented only raises the issue of the sufficiency of the evidence to
prove that he received title to any of the property or services he received. On brief and at oral
argument, Brabson argues that, because DRS was the “middle-man” in the wheelchair purchase,
he did not receive title to the wheelchair from DRS, and, therefore, the Commonwealth did not
prove that he committed larceny by false pretenses from DRS as alleged in the indictment.
Because this argument raises a different legal issue from that encompassed in the question
presented on appeal, we will not address it. See Rule 5A:12(c).
-3-
In order to convict an accused of attempted larceny by false pretenses, the
Commonwealth must prove two elements: first, that the defendant had the specific intent to
commit larceny by false pretenses, and second, that the defendant committed a direct, but
ineffectual, act towards accomplishing the crime. Sizemore v. Commonwealth, 218 Va. 980,
983, 243 S.E.2d 212, 213 (1978).
At the trial below, the Commonwealth established that Brabson hired an attorney and
sued his automobile insurance company, Amica, for one million dollars under the uninsured
motorist coverage of his policy for the injury he claimed to have suffered in the 2005 car
accident. In order to establish the extent of Brabson’s injuries, and thus the amount of damages
to which he was entitled, his attorney made several appointments for Brabson to be evaluated by
rehabilitation and vocational experts. Brabson underwent a Physical Work Performance
Evaluation (PWPE) administered by Kathy Dollins, a vocational expert. The counselor, Robert
Jackson, prepared a report based on his evaluation of Brabson, his review of Brabson’s medical
records, and his assessment of Brabson’s work qualifications. Jackson opined that Brabson
could only work part-time with significant accommodations since the 2005 accident and that he
could expect to lose 50% of his earning capacity over his lifetime as a result. Brabson’s attorney
sent a demand letter to Amica, in which he relied on Jackson’s report.
At trial, Jackson testified that during the evaluation, Brabson remained in his wheelchair
and indicated to Jackson that he was wheelchair bound. Brabson told Jackson that “[h]e was
able to get up on a walker, but he indicated that it was essentially for stretching, but [he] was not
functional with a walker.” Jackson did not physically examine Brabson; instead, Jackson
discussed “functionality, what he could do and what he couldn’t do” with Brabson. Jackson
testified that Brabson stated he “was able to sit for about an hour at a time, two hours maximum.
. . . He must lay down and put heat and ice on his back . . . and do massage and stretching
-4-
techniques . . . after short activities.” Brabson never told Jackson that he was actually able to
walk, hike, and dance during the relevant time. Jackson testified that, had he known Brabson’s
actual abilities, it would have “absolutely” changed his opinion as to Brabson’s ability to work.
Brabson argues that there was insufficient evidence to prove he had the requisite specific
intent to commit larceny against Amica by false pretences because, he contends, the
Commonwealth did not prove that he “had specific knowledge of how any specific action or
statement by him was to be used, there can be no proof, even circumstantial, of a specific intent
by Brabson, at the time, to commit larceny by false pretenses against Amica.” Appellant’s Br. at
21-22.
“Intent is the purpose formed in a person’s mind which may, and often must, be inferred
from the facts and circumstances in a particular case.” Ridley v. Commonwealth, 219 Va. 834,
836, 252 S.E.2d 313, 314 (1979). The Commonwealth may prove intent “by the circumstances,
including a person’s conduct and statements.” Robertson v. Commonwealth, 31 Va. App. 814,
820, 525 S.E.2d 640, 643 (2000) (citing Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d
808, 810 (1977)). Further, “‘[t]he fact finder may infer that a person intends the immediate,
direct, and necessary consequences of his voluntary acts.’” Id. (quoting Bell v. Commonwealth,
11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991)). Finally, “inferences to be drawn from
proven facts, so long as they are reasonable, are within the province of the trier of fact.”
Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).
Here, the evidence in the trial court proved that Brabson lied about the extent of his
injuries and his abilities to both his doctors and to Jackson, who performed his vocational
assessment. The evidence also established that Brabson hired an attorney and sued his insurance
company, seeking benefits under his policy. The trial court, sitting in this case as the trier of
facts, could infer from this evidence that Brabson fully intended his attorney to zealously pursue
-5-
his lawsuit like any other and that Brabson intended his misrepresentations to his physicians and
to Jackson to convince his insurance company that he was no longer able to work, which would
increase the amount of money he would receive from them. Thus, the evidence was sufficient to
show that Brabson had the requisite specific intent to obtain money to which he was not entitled.
Brabson also argues that the evidence does not establish the second element of attempted
larceny by false pretenses: that he made a direct, albeit ineffectual, act in furtherance of the
crime. Brabson contends that “the Commonwealth’s best case is that Brabson misrepresented his
condition to Ms. Dolling who, in turn, passed it along to Dr. Murphy [one of Brabson’s
physicians], who, in turn, passed it along to Robert Jackson, [Brabson’s attorney’s] rehabilitation
expert, who prepared a report to [the attorney], who incorporated it as part of a settlement
demand to Amica.” Thus, Brabson argues, his act was too attenuated from the misrepresentation
to Amica to fulfill the direct act element of attempted larceny by false pretenses.
However, “‘[t]he attempt contemplated by the statute must be manifested by acts which
would end in the consummation of the particular offence, but for the intervention of
circumstances independent of the will of the party.’” Hicks v. Commonwealth, 86 Va. 223, 228,
9 S.E. 1024, 1026 (1889) (quoting People v. Murray, 14 Cal. 159, 160 (1859)). Moreover, “[t]he
victim of the fraudulent scheme need not be the person to whom the false pretense or
misrepresentation is made.” Mosteller v. Commonwealth, 222 Va. 143, 148, 279 S.E.2d 380,
382 (1981).
There, the appellant, who was a sales representative for a furniture manufacturer,
provided false information that was used to provide state-owned institutions with inflated bids
for furniture. Id. at 146-47, 279 S.E.2d at 381. When the Commonwealth’s Department of
Purchases and Supplies eventually approved a bid and paid the vendors, the appellant pocketed
the difference between the true value of the furniture and the inflated figures he provided to the
-6-
bidding vendors. Id. Thus, while Mosteller made false representations to the vendors regarding
the cost of the furniture and “fictitious ancillary services” that he never provided, he ultimately
defrauded the Commonwealth. Id. at 147, 279 S.E.2d at 381.
Similarly, the appellant in Quidley, 221 Va. at 693, 275 S.E.2d at 622, used a falsified
purchase order from the Norfolk Social Service Bureau to buy clothing at J.C. Penney Company.
Id. at 964, 275 S.E.2d at 624. Penney’s did, in fact, receive payment from the Bureau, and the
appellant challenged her conviction on the grounds that the indictment, which indicated that
Penney’s had been the victim of the larceny by false pretenses, was at fatal variance with the
proof adduced at trial. Id. at 965, 275 S.E.2d at 624. Our Supreme Court rejected that argument,
and held that the crime of false pretenses is “complete when the fraud intended is consummated
by obtaining the property sought by means of the false representations . . . . [I]t is sufficient if the
fraud of the accused has put the victim in such a position that he may eventually suffer loss.” Id.
at 965, 275 S.E.2d at 625 (citations omitted).
The evidence in this case established that Brabson consistently made false representations
regarding his disability and work capacity to whomever he needed to in order to gain financially.
These misrepresentations included those made to the experts employed by his attorney to further
his lawsuit. Accordingly, the trial court had adequate evidence to determine that Brabson had
made a direct act in furtherance of the crime of larceny by false pretences.
III.
For the foregoing reasons, Brabson’s convictions are affirmed.
Affirmed.
-7-