Nathan B. Kirk v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia

NATHAN B. KIRK
MEMORANDUM OPINION BY
Vv. Record No. 2735-97-4 JUDGE DONALD W. LEMONS
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Jean H. Im, Assistant Public Defender (Office
of the Public Defender, on brief), for
appellant.
Jeffrey S. Shapiro, Assistant Attorney

General (Mark L. Earley, Attorney General, on
brief), for appellee.

Nathan B. Kirk appeals his conviction for obtaining property
by false pretenses alleging that the trial court improperly
instructed the jury on the elements of that offense. Finding no
error, we affirm his conviction.

On June 13, 1995, appellant verbally presented a purchase
order number to James Payne, an employee in the parts department
of OurisMan Toyota car dealership. Payne then gave Kirk a
compact disc player and generated a receipt that was signed by
Kirk. Payne testified that he knew Kirk was employed by Farrish
Oldsmobile and that he had done business with him in the same
capacity on at least three or four prior occasions. Payne

testified that he believed Kirk was giving him a valid purchase

"Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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order number and that he gave him the compact disc player on that
basis.
John Holcombe, employed as a parts manager by Farrish
Oldsmobile, testified that he did not pay the bill from OurisMan
Toyota for the compact disc player because the Oldsmobile
dealership never received the item. 	Farrish Oldsmobile had no
record of the purchase order number that Kirk provided to Payne.
Kirk was charged with obtaining property by false pretenses,
a violation of Code § 18.2-178. 	At the conclusion of the
evidence at his jury trial, Kirk requested the following
instruction:
Nathan Kirk is charged with the crime of
obtaining property by false pretense or
token. 	The Commonwealth must prove beyond a
reasonable doubt each of the following
elements of that crime:
(1) 	that Mr. Kirk made false representations of
existing facts or past events to Fairfax
OurisMan Toyota; and
(2) 	that Mr. Kirk made such representations
with the knowledge of their falsity; and
(3) 	that the representations were made with
the intent to defraud; and
(4) 	that the false representations were used
for the purpose of perpetrating the
fraud; and
(5) 	that an actual fraud occurred; and
(6) 	that the false pretenses induced the
owner to part with the property; and
(7) 	that both the title and possession of
the property passed from the owner to
Mr. Kirk; and

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(8) 	that the property received was worth
$200.00 or more.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall return a
verdict of guilty, but shall not fix
punishment until you have received further
instructions from the Court.
If you find from the evidence that the
Commonwealth has failed to prove beyond a
reasonable doubt any one or more of the
elements of the offense, then you shall find
the defendant not guilty.
The court granted the requested instruction, but deleted
paragraph (4) finding that it was duplicative of paragraph (3).
The jury found Kirk guilty of obtaining property by false
pretenses, and the court affirmed the jury's verdict. 	Kirk
maintains that removal of paragraph (4) from the instruction
resulted in an incomplete instruction and denied him a fair
trial. In order 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."
Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717
(1976) (citation omitted).
In this context, the false pretense must be a
representation as to any existing fact or
past event. 	But merely showing that the
accused knowingly stated what was false is
not sufficient; there must also be proof that

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his intent was to defraud. 	Furthermore, the
fraudulent intent must have existed at the
time the false pretenses were made, by which
the property was obtained.
Reigert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803,
807-08 (1977) (citations omitted).
In order for the jury to convict the defendant, the
instruction given by the trial judge required proof beyond a
reasonable doubt that: 	(1) Kirk made a false representation of a
past event or existing fact; (2) Kirk had the intent to defraud
Ourisman Toyota when the false representations were made; (3)
because of the false representations, Ourisman Toyota parted with
title to and possession of the property; and (4) the value of the
property was over $200.
A trial court has a duty to avoid giving redundant or
repetitive instructions. 	See League v. Commonwealth, 9 Va. App.
199, 210, 385 S.E.2d 232, 239 (1989). 	All of the elements
necessary for a conviction of obtaining property by false
pretenses were contained in the instruction. 	Although the trial
court deleted paragraph (4), finding that it was duplicative of
paragraph (3), paragraph (4) ("that the false representations
were used for the purpose of perpetrating the fraud") was
actually duplicative of paragraph (6) ("that the false
representations induced the owner to part with the property").
It was properly removed from the instruction. 	The jury was
instructed on all elements of the offense.
The conviction is affirmed.

Affirmed.
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