Holt v. Commonwealth
| Decision Date | 04 August 2015 |
| Docket Number | Record No. 1252-14-1 |
| Parties | ANGELA MAYE HOLT v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
In the Court of Appeals of Virginia on Tuesday the 15th day of September, 2015.
Circuit Court Nos. CR13003659-00 and CR13003904-00
Upon a Petition for Rehearing En Banc
Before the Full Court
On August 13, 2015 came the appellant, by court-appointed counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on August 4, 2015, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on August 4, 2015 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In addition, twelve printed copies of each brief shall be filed. It is further ordered that the appellant shall file an electronic version and twelve additional copies of the appendixpreviously filed in this case.1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By: original order signed by a deputy clerk of the Court of Appeals of Virginia at the direction of the Court
Deputy Clerk
UNPUBLISHED
Present: Judges Petty, Chafin and Decker
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
At the conclusion of a jury trial held in the Circuit Court of the City of Norfolk, Angela Maye Holt ("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. On appeal, she challenges the sufficiency of the evidence supporting her convictions. For the reasons that follow, we affirm Holt's conviction of obtaining money by false pretenses. However, we find that the evidence presented at trial was insufficient to support her conviction of embezzlement, and accordingly, we reverse that conviction.
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Holt and Anthony Banks ("Banks"), the victim in the present case, began dating in 2012 when Banks was seventeen years old and Holt was twenty-nine years old. Banks and Holt lived together at Holt's mother's house.
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, and Holt's mother observed Banks making some of these payments. 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 did not 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.
On July 16, 2013, Aaron Smalley ("Smalley"), Holt's former boyfriend and the father of her children, was released from incarceration, and he and Holt quickly resumed their romantic relationship. When Smalley came to Holt's mother's house to pick up his children on August 2, 2013,2 Smalley and Banks had an argument that eventually developed into a physical altercation. As Smalley attempted to leave the house in another car owned by Holt, Banks took the keys of the car to prevent Smalley from driving away with equipment and passes required for Banks'semployment. Smalley then got into the Suburban and drove away. This altercation effectively ended the romantic relationship between Holt and Banks, and Holt and Smalley were married in December 2013.
Banks decided to record his title to the Suburban with the DMV as soon as possible in order to regain possession of the vehicle. As the altercation between Smalley and Banks occurred on a Friday evening, however, Banks waited until the following Monday to register his title. When he arrived at the DMV, 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.3
At her trial, Holt testified that she never sold the Suburban to Banks. She also claimed that he never paid her any money for the vehicle. Although Holt admitted that she signed the title of the Suburban on July 29, 2013, she explained that she only did so in anticipation of selling the vehicle to a third party. Holt testified that she stored the signed title in a bedside table and that she never signed the title of the Suburban over to Banks. Holt claimed that she obtained a replacement title to the Suburban because she feared the original title had been stolen when she could not locate it following the altercation between Smalley and Banks. The jury rejected Holt's testimony concerning the sale of the vehicle and convicted her of obtaining money by false pretenses and embezzlement, sentencing her to pay a $900 fine for each offense. Holt appealed her convictions to this Court.
On appeal, Holt contends that the evidence presented at trial was insufficient to prove several elements of the offenses of which she was convicted. Specifically, Holt argues that the evidence was insufficient to support her conviction of obtaining money by false pretenses because it failed to establish that she "acted with a fraudulent intent to deprive [Banks] of money or property." She also claims that the evidence was insufficient to establish that she made a false representation to Banks of any "material past and present fact," and she requests that we review this issue under the "ends of justice" exception to Rule 5A:18. Additionally, Holt contends that the evidence was insufficient to support her conviction of embezzlement because it failed to establish that she "converted property over which she had custody or control by virtue of a position of trust."
When considering the sufficiency of the evidence on appeal, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). Under this standard, "a reviewing court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It asks instead whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson, 443 U.S. at 319). We do not "substitute our judgment for that of the trier of fact" even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). Furthermore, as previously stated, we review the evidence and all reasonable inferences derivedfrom it in the light most favorable to the Commonwealth, the prevailing party at trial. See, e.g., Archer, 26 Va. App. at 11, 492 S.E.2d at 831.
When we review the evidence under this deferential standard, we conclude that it was sufficient to support Holt's conviction of obtaining money by false pretenses. We agree with Holt, however, that the evidence was insufficient to prove that she fraudulently converted any property that had been entrusted to her, and therefore, we conclude that the evidence was insufficient to support her conviction of embezzlement.
Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807 (1977) (quoting Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976...
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