COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Cole 

Argued at Richmond, Virginia 

LONNIE JEROME GAINES, III 

 MEMORANDUM OPINION* BY 

v. Record No. 1354-98-4 JUDGE JAMES W. BENTON, JR. 

 JULY 6, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 S. Jane Chittom, Appellate Counsel (Elwood 

Earl Sanders, Jr.; Public Defender 

Commission, on brief), for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 The trial judge acquitted Lonnie Jerome Gaines, III, of 

receiving stolen goods, the charge contained in Count I of the 

indictment, and convicted him of obtaining money by false 

pretenses in violation of Code § 18.2-178, the charge in Count II 

of the indictment. Gaines contends the evidence was insufficient 

to support the conviction because (1) he made no false 

representation, (2) the owner was not induced by a false 

representation to transfer money, and (3) the judgment of 

acquittal on the charge of receiving stolen goods precluded the 

conviction of obtaining money by false pretenses. The 
Commonwealth concedes that the evidence was insufficient to prove 

the owner was induced by a false representation to transfer money. 

For the following reasons, we reverse the conviction. 

I. 

 Lonnie Jerome Gaines, III, was indicted and tried on two 

indictments, charging obtaining money by false pretenses and 

receiving stolen goods. The Commonwealth's evidence proved that 

an employee of Nordstrom's Department Store at Montgomery Mall in 

Maryland saw a young man, who was not Gaines, remove a tuxedo and 

leave the store without paying for it. The employee followed the 

young man out of the store, saw him enter a car, and noted the 

car's description and license plate number. The employee notified 

other Nordstrom stores to be alert for someone attempting to 

return the stolen tuxedo. The tuxedo was size 48XL and had a 

retail price of $995. 

 One and a half hours later, Donnie Martin and Gaines 

approached a salesman employed at the Nordstrom's store in Tysons 

Corner, Virginia. Martin removed a tuxedo from a bag and said he 

wanted to return it. Martin told the salesman he wanted to return 

the tuxedo because "it was given to him and . . . it's not his 

right size." The salesman, who had been informed that a tuxedo, 

size 48XL, had been stolen from the store at Montgomery Mall, 

asked Martin for a driver's license. Gaines offered the salesman 

his driver's license. The salesman accepted Gaines' driver's 

license, went to an office, and called a security employee. When 

- 2 -
the security employee arrived, the salesman wrote Gaines' name and 

address on the merchandise ticket. The salesman then returned to 

the register and asked whether they wanted the refund in cash or 

credited to a card. Gaines said cash. The salesman entered the 

return on the cash register, escorted Gaines and Martin to 

customer service, gave the cash register documents to a clerical 

worker, and told the worker to give the money to Gaines. The 

clerical worker gave Gaines an amount in excess of $1,000, which 

represented the sales price of the tuxedo plus a refund of tax. 

 Acting on a description of the car used by the thief at the 

Montgomery Mall store and information that two persons were 

returning the stolen tuxedo to the Tysons Corner store, Officers 

Bennett and Turner located the car and waited. The officers saw 

Martin exit the store and enter the car on the passenger side. 

Gaines then exited the store "carrying money" and sat on the 

driver's seat. The officers arrested Gaines and Martin and 

recovered $400 in cash from the glove compartment in front of 

Martin and $644 from the floor below Gaines. 

 When the officers read Miranda warnings to Gaines, Gaines 

told the officers that Martin, his friend, had asked Gaines to 

meet Martin at Montgomery Mall and give Martin a ride. According 

to Gaines, as he arrived at the mall, "Martin jumped in the car 

with a suit in his hand and said let's go, let's go." Gaines said 

Martin asked him to return the suit to another Nordstrom's store. 

According to Gaines, when he asked why Martin did not return the 

- 3 -
tuxedo to the Montgomery Mall store, Martin replied that he did 

not know and that he did not have identification. Martin said the 

tuxedo was worth $900 and offered Gaines $500 if he returned the 

suit. When the officers asked Gaines "didn't you think the suit 

could have been stolen," Gaines responded that he "thought 

something was probably wrong with the suit, but [he] needed the 

money." 

 As Gaines' witness, Martin testified at trial that he 

telephoned Gaines for a ride from Montgomery Mall. As Gaines 

arrived, Martin stole the suit and left the mall. After he 

entered Gaines' car, he told Gaines that the tuxedo was a gift 

from Martin's father, and he asked Gaines to drive to Tysons 

Corner. He told Gaines he wanted to return the tuxedo but had no 

identification. Martin testified that he made no offer to Gaines 

and that Gaines returned the tuxedo as a favor. Martin further 

testified that when the police arrived, Gaines was in the process 

of counting and handing the money to him. 

 The trial judge "believe[d] beyond a reasonable doubt that 

[Gaines] knew that the suit was stolen . . . [because it] doesn't 

make any sense otherwise." After making that finding, the trial 

judge convicted Gaines of the obtaining money by false pretenses 

indictment. However, the trial judge acquitted Gaines on the 

charge of receiving stolen goods indictment. This appeal 

followed. 

- 4 -
II. 

 Gaines and the Commonwealth agree upon the elements of the 

offense. 

To sustain a conviction of larceny by false 

pretenses, the Commonwealth must prove: (a) 

that the accused intended to defraud; (b) 

that a fraud actually occurred; (c) that the 

accused used false pretenses to perpetrate 

the fraud; and (d) that the false pretenses 

induced the owner to part with his property. 

Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d 160, 161 

(1994) (en banc). Gaines contends, however, that the evidence 

failed to prove the latter two elements. The Commonwealth 

concedes that because the Nordstrom's employee knew the tuxedo 

was stolen, the evidence failed to prove that any Nordstrom's 

employee was induced by false pretenses to pay money. However, 

the Commonwealth contends that Gaines did not preserve the other 

argument for appeal. 

 We agree with the Commonwealth's argument that the record 

contains no indication Gaines raised in the trial court the 

argument that Martin, not Gaines, used false pretenses. Gaines' 

argument on the motion to strike generally was that he was only 

helping his friend and did not know the suit was stolen. "[I]t 

is well established that the purpose of Rule 5A:18 is to require 

a party to raise an issue in a timely fashion before the trial 

judge so the [trial judge] has an opportunity to address the 

issue and prevent unnecessary appeals." White v. Commonwealth, 

21 Va. App. 710, 720, 467 S.E.2d 297, 302 (1996). The issue 

- 5 -
that Gaines now urges was not preserved in this manner. 

Accordingly, we will not consider it. Rule 5A:18. 

III. 

 Gaines also contends that the judgment of acquittal on the 

charge of receiving stolen goods precludes the conviction on the 

crime of false pretenses. The Commonwealth argues that Gaines 

also failed to preserve that issue for appeal. We agree that 

the record contains no indication that this issue was raised in 

the trial court. Accordingly, we will not consider it on 

appeal. Rule 5A:18. 

 For these reasons, we hold the evidence failed to prove 

beyond a reasonable doubt that the false pretenses induced the 

Nordstrom's employee to pay the money, which is an element of 

the charged offense. Accordingly, we reverse the conviction. 

See Wynne, 18 Va. App. At 460, 445 S.E.2d at 161. 

 Reversed. 

- 6 -