Eric L. Francis v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Senior Judge Bumgardner
Argued at Richmond, Virginia
ERIC L. FRANCIS
MEMORANDUM OPINION * BY
v. Record No. 3182-06-1 JUDGE RUDOLPH BUMGARDNER, III
MAY 6, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Stacie A. Cass, Assistant Appellate Defender II, for appellant.
Josephine F. Whalen, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Eric L. Francis appeals his convictions of feloniously receiving stolen property and two
counts of obtaining money by false pretenses, misdemeanors. The Commonwealth concedes the
evidence failed to prove the value of the stolen property was $200 or more, so we reverse the felony
conviction. We find the evidence was sufficient to sustain both misdemeanor convictions.
However, we grant leave for the trial court to consider whether those sentencing orders contain
clerical errors in recording the judgment rendered, Code § 8.01-428(B).
We examine the evidence in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom. See Haskins v. Commonwealth, 31
Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999). The defendant’s wife worked as an assistant
manager at Holiday Food Store on Pruden Boulevard in Suffolk. At 6:33 a.m., she took three
packs of lottery tickets from storage, activated them, but never displayed them for sale. The
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
tickets were never sold by the store. When a pack of tickets has been activated, any winning
ticket in the pack can be redeemed at any lottery location.
At 4:00 p.m. the same day, the defendant redeemed all the winning tickets from one of
the packs at a Kangaroo Express store in Suffolk. He received $105 cash from that store. About
twenty minutes later at a different convenience store, a Holiday Food Store, he redeemed all the
winning tickets from a second pack of tickets activated by his wife. The defendant again
received $105 cash.
The indictment charged that the defendant received stolen property of a value of $200 or
more. The defendant asserts the Commonwealth did not prove the value of the stolen property
he received was $200 or more. The Commonwealth concedes the evidence is insufficient to
prove the felony conviction because of the holding in Hunt v. Commonwealth, 46 Va. App. 25,
614 S.E.2d 668 (2005). Hunt held the value of a stolen lottery ticket was the value of the paper
on which it was printed, not its redemption value. Id. at 35, 614 S.E.2d at 672. We reverse the
defendant’s conviction of the felony and remand for sentencing on the lesser-included
misdemeanor.
The warrants charged the defendant with obtaining money by false pretenses from
Kangaroo Express and Holiday Food Stores. The defendant maintains the Commonwealth’s
proof was at variance with the charges. He argues that the Virginia State Lottery was the actual
victim of the crimes because ultimately it reimbursed the stores for the money paid out in
winnings.
In Quidley v. Commonwealth, 221 Va. 963, 275 S.E.2d 622 (1981), the defendant used a
forged welfare purchase order to obtain merchandise from a store. Ultimately, the welfare
department reimbursed the store for its loss. The Virginia Supreme Court rejected Quidley’s
argument that the welfare department was the defrauded victim rather than the store.
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The crime is complete when the fraud intended is consummated by
obtaining the property sought by means of the false
representations, and the offense is not purged by ultimate
restoration or payment to the victim. It is sufficient if the fraud of
the accused has put the victim in such a position that he may
eventually suffer loss.
Id. at 966, 275 S.E.2d at 625.
In this case, the defendant presented stolen, winning lottery tickets to two different stores.
Each store paid the defendant in cash from its own funds. As in Quidley, each of the crimes of
obtaining money by false pretenses was then complete. See id. Although the Lottery reimburses
for money paid for winning tickets, the stores sustained a loss of cash funds when they paid the
defendant for stolen tickets. The cash in the till did not belong to the Lottery even though it was
contractually obligated to reimburse its agents when they paid winners. No variance existed
between the warrants and the proof presented at trial.
The defendant maintains that the sentencing orders do not reflect the actual sentence
pronounced by the trial court. Code § 8.01-428(B) 1 provides the remedy sought, but the claim is
properly addressed to the trial court. We grant leave for it to consider the defendant’s motion
and remand for that purpose.
1
Code § 8.01-428(B) provides:
Clerical mistakes in all judgments or other parts of the record and
errors therein arising from oversight or from an inadvertent
omission may be corrected by the court at any time on its own
initiative or upon the motion of any party and after such notice, as
the court may order. During the pendency of an appeal, such
mistakes may be corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending such
mistakes may be corrected with leave of the appellate court.
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We reverse the defendant’s felony conviction for receiving stolen property and remand
for sentencing as a misdemeanor. We affirm his misdemeanor convictions, but grant leave to
consider whether clerical errors exist in the final sentencing orders.
Affirmed in part,
reversed and remanded in part.
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