Polk v. Commonwealth
| Decision Date | 16 July 2013 |
| Docket Number | Record No. 1091-12-1 |
| Court | Virginia Court of Appeals |
| Parties | DANIELLE LEE POLK v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Beales, Alston and Huff
Argued at Chesapeake, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Gregory K. Matthews (Gregory K. Matthews, P.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Danielle Lee Polk ("appellant") appeals her conviction of obtaining money by false pretenses, in violation of Code § 18.2-178. Following a bench trial in the Circuit Court of the City of Portsmouth ("trial court"), the trial court convicted appellant and sentenced her to three years in prison, with one year and nine months suspended. On appeal, appellant contends that the trial court erred in 1) ruling that the indictment was sufficient when the indictment alleged that appellant took "property" instead of "money," and the proof at trial showed that appellant took money and not property; and 2) ruling that the evidence was sufficient to show that Tineal Boney ("Boney") was the victim when the actual victim was Michael Witkowski ("Witkowski"), the owner of the property in question. For the following reasons, this Court affirms appellant's conviction.
On appeal, "'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
On August 26, 2011, Boney met with appellant regarding appellant's online advertisement for a room for rent at 164 Butler Street in Portsmouth for $250 a month, with a $200 deposit. After appellant informed Boney that her parents had given appellant the home and that it was her house, Boney gave appellant $200 in cash and received a key to the home. Later that evening, Boney inspected the property and discovered that the key she received did not work in either the front door or the upstairs back door. Boney was able to obtain entry, however, because the upstairs door was unlocked. Although Boney did not move in that day, she subsequently changed the upstairs door's lock.
The week after the initial meeting, appellant informed Boney that she needed another payment, so Boney sent $120 to appellant in Baltimore by Western Union. On September 9, 2011, appellant moved into the property even though the electricity was not turned on. Boney informed appellant about the lack of electricity, and appellant stated she would have it turned on. Appellant, however, failed to have the electricity turned on. On September 13, 2011, Boney told appellant that she was going to have the power turned on the next day. In response, appellant told Boney to give her the bill and that appellant would pay for it.
On September 17, 2011, Boney gave appellant a third payment of $100 when appellant came to her workplace. That same day, appellant wrote the following rental agreement, which both parties signed:
The rental agreement was entered into evidence at trial without objection.
Near the end of September, Witkowski went to the home and discovered that the locks were changed on the back door, a new power meter was in place, and some personal items were in the home. On September 22, 2011, Witkowski contacted Detective W.J. Baker ("Baker"), with the Criminal Investigation Unit of the Portsmouth Police Department, and they went to the home together. Upon reaching the house, Witkowski and Baker entered the home through the downstairs front door. Boney, who was upstairs at the time, was startled by the noise coming from the front of the house and asked, "Who's there?" Witkowski and Baker announced themselves and informed Boney that Witkowski was the owner of the property. Boney told Baker that she was not aware that appellant did not own the home and gave Baker the signed rental agreement. After discussion, Witkowski let Boney remain a tenant, and Boney paid rent to Witkowski.
On February 2, 2012, the grand jury indicted appellant as follows:
At trial on March 22, 2012, Witkowski testified that he knew appellant, who was a girlfriend of a friend of his, and that she had previously stayed with his family in Virginia Beach. With regard to the Portsmouth home, Witkowski stated that he allowed appellant to stay in the downstairs apartment in exchange for her cleaning and painting it in preparation for renting. Witkowski, however, specified that he never gave appellant permission to rent out the apartment.
At the conclusion of the Commonwealth's evidence, appellant made a motion to strike, arguing that there was a fatal variance between the indictment, which charged obtaining "property" by false pretenses, and the evidence at trial that appellant obtained "money" by false pretenses; and that the evidence was insufficient because Boney was not the actual victim. The trial court denied appellant's motion to strike.
Appellant then testified that Witkowski gave her permission to move into the upstairs apartment because the downstairs apartment was uninhabitable due to the presence of roaches, but she never did so because she had reconciled with her boyfriend. Appellant also stated that she told Witkowski she was thinking of renting out the upstairs room since she was unable to "do it on [her] own," and Witkowski had responded that "'[i]f you can get it together, that's fine.'" In addition, appellant admitted that she never told Witkowski that Boney had moved in, but claimed that it was because she did not know Boney had moved in yet because she had told Boney not to do so until the electricity had been turned on.
At the conclusion of trial, appellant renewed her two arguments in support of her motion to strike the evidence, which the trial court denied. This appeal followed.
On appeal, appellant contends that the trial court erred in 1) ruling there was no fatal variance between the indictment and the proof at trial; and 2) ruling that the evidence was sufficient to convict appellant of obtaining money by false pretenses.
Appellant first argues that the trial court erred in ruling that the indictment was sufficient when the indictment alleged that appellant took "property" instead of "money," and the proof at trial showed that appellant took "money" and not "property."
"Notice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits and forms the key to the fatal variance rule." Hairston v. Commonwealth, 2 Va. App. 211, 214, 343 S.E.2d 355, 357 (1986). "A variance occurs when the criminal pleadings differ from the proof at trial." Purvy v. Commonwealth, 59 Va. App. 260, 266, 717 S.E.2d 847, 850 (2011). "[A] variance will be deemed fatal 'only when the proof is different from and irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the commission of the crime charged.'" Id. at 267, 717 S.E.2d at 850 (quoting Stokes v. Commonwealth, 49 Va. App. 401, 406, 641 S.E.2d 780, 783 (2007)). "In short, the 'offense as charged must be proved.'" Id. (quoting Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).
Id. at 266, 717 S.E.2d at 850 (citing Morris v. Commonwealth, 33 Va. App. 664, 668-69, 536 S.E.2d 458, 460 (2000)). Furthermore, "[e]rrors in '[m]ere matters of form [in an indictment will be rejected] where no injury [or prejudice] could have resulted therefrom to the accused.'" Scott v. Commonwealth, 49 Va. App. 68, 73, 636 S.E.2d 893, 895 (2006) () (quoting Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991)).
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