FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Jerrauld C. Jones, Judge.
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.
Present: Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston, McCullough,[*] Chafin, Decker, O'Brien, Russell and AtLee. JUDGE TERESA M. CHAFIN. Petty, J., with whom Humphreys and O'Brien, JJ., join, concurring, in part, and dissenting, in part.
[66 Va.App. 203] TERESA M. CHAFIN,
UPON A REHEARING EN BANC
At the conclusion of a jury trial, Angela Maye 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. She appealed both convictions. On appeal, Holt argued that the evidence failed to establish that she obtained money by false pretenses because it did not prove: 1) that she intended to defraud the victim, or 2) that she made a false representation to him of any past or existing fact. While Holt acknowledged that she failed to make any argument at trial concerning the lack of proof of any false representation, she requested this Court to review the issue under the ends of justice exception to Rule 5A:18. Additionally, Holt argued that the evidence was insufficient to support her conviction of embezzlement because it failed to prove that she was entrusted with the property at issue.
A panel of this Court unanimously reversed Holt's embezzlement conviction and dismissed the indictment charging her with that offense. Holt v. Commonwealth, No. 1252-14-1 (Va. Ct.App. Aug. 4, 2015). The panel was divided, however, on whether the ends of justice exception to Rule 5A:18 should have applied to her argument concerning the Commonwealth's failure to prove any false representation. Id. The panel majority held that the exception did not apply under the facts and circumstances of the case and affirmed her obtaining money by false pretenses conviction. Id. The dissenting judge would have applied the ends of justice exception and reversed Holt's conviction. Id.
Holt petitioned this Court for a rehearing en banc regarding her false pretenses conviction, only requesting a review of the applicability of the ends of justice exception to her case and the sufficiency of the evidence establishing that she made a false representation of a past or existing fact. The Commonwealth did not file a petition requesting a rehearing en banc concerning Holt's embezzlement conviction. We granted Holt's petition for rehearing regarding the issues she presented [66 Va.App. 204] therein, stayed the mandate of the panel decision, and reinstated the appeal on the docket of this Court. Upon rehearing the relevant issues en banc, we hold that the ends of justice exception does not apply to Holt's case and affirm her conviction for obtaining money by false pretenses in violation of Code § 18.2-178.
" In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court[, and] accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence relevant to the issues addressed on rehearing en banc is as follows.
Holt and Anthony Banks, the victim in the present case, began dating in 2012. When the relationship began, Banks was only seventeen years old. Holt was twenty-nine years old at that time. 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. 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 chose not to 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.
[66 Va.App. 205] On July 16, 2013, Aaron 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, Smalley and Banks had an argument that eventually developed into a physical altercation. When Banks called the police, Smalley got into the Suburban and drove away.
Following the altercation, Banks decided to record his title to the Suburban with the DMV in order to regain possession of the vehicle. When he arrived at the DMV three days later, 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. Holt married Smalley approximately four months later in December 2013.
At trial, neither Banks nor Holt testified about any specific statements that Holt made to induce Banks to purchase the vehicle. Banks explained that he needed a vehicle to drive to work and that he agreed to buy Holt's Suburban to help her make payments on her child support obligations. Holt denied that she ever sold the vehicle to Banks, denied that he paid her money for the vehicle, and claimed that she signed the title so that a third party could purchase the vehicle from her.
In closing argument, the Commonwealth acknowledged that it had to prove that Holt made a false representation of a past or existing fact that induced Banks to purchase the Suburban in order to prove that Holt obtained money by false pretenses. The Commonwealth then argued that Holt had falsely represented " that she would give over the car to Mr. Banks at the end of the transaction."  Holt did not argue [66 Va.App. 206] that such a representation referenced a future event rather than a past or existing fact, and the jury convicted Holt of obtaining money by false pretenses in violation of Code § 18.2-178.
On rehearing en banc, we must determine whether the ends of justice exception to Rule 5A:18 allows us to address the merits of Holt's sufficiency argument under the facts and circumstances of this case. As a preliminary matter, however, we first address ...