COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Wi llis and Senior Judge Cole Argued at Rich mond, Virginia

LONNIE JEROME GAINES, III MEMORANDUM OPINION * BY v. Record No. 1354-98-4 JU DGE JAMES W. BENTON, JR. JULY 6, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY F. Bruce Bach, Judge S. Jane Chittom, Ap pellate Counsel (Elwood Earl Sanders, Jr.; Public Defender Commission, on brief), for appellant. Virginia B. Theise n, Assistan t 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 judg e acquitted Lonn ie Jerome Gain es, III, of receiving stol en goods, the charge cont ained in Count I of the indictment, and convicted him of obtaining mo ney by false pretenses in violation of Code § 18.2-178, th e charge in Count II of the indictment . Gaines contends the ev idence was insufficient to support the conv iction because (1) he made no false representation, (2) the owner was not induce d by a false representation to transfer money, an d (3) the ju dgment of acquittal on the charge of receiving stolen goods precluded the conviction of obta ining money by fals e pretense s. TheCommonwealth concedes that the evidence was insufficient to prove the owner was in duced by a false re presentation to tr ansfer money. For the follow ing reasons, we reverse the conviction.

I. Lonnie Jerome Gain es, III, was indicted and tried on two indictments, charging obtaining mo ney by false pretenses and receiving stolen goods. The Comm onwealth's eviden ce proved that an employee of No rdstrom's Depa rtment Store at Mo ntgomery Mall in Maryland saw a young ma n, who was not Gaines, remove a tuxedo and leave the store wi thout paying for it. Th e employee followed the young man out of the store, saw him enter a car, and noted the car's descript ion and licens e plate number. The employee notified other Nordstrom st ores to be alert for someone atte mpting to return the stolen tuxe do. 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 th e Nordstrom's st ore in Tysons Corner, Virginia . Martin removed a tuxedo from a bag and said he wanted to return it. Martin told the salesman he want ed to return the tuxedo because "i t was given to him an d . . . it's not his right size." Th e salesman, who ha d been informed that a tuxedo, size 48XL, had been st olen from the store at Montgomery Mall, asked Martin for a driv er's license. Gaines offered th e salesman his driver's license. The salesman accept ed Gaines' driver's license, went to an of fice, and called a security em ployee. When

- 2 -the security employee arrived, the salesman wrote Gaines ' name and address on the merchand ise ticket. The salesm an then returned to the register and asked whether they wanted th e refund in cash or credited to a ca rd. Gaines said cash. The salesman entered the return on the ca sh register, es corted Gaines and Martin to customer service, gave the cash register do cuments to a clerical worker, and told the worker to gi ve the money to Gaines. The clerical worker gave Ga ines an amount in ex cess of $1 ,000, which represented the sa les price of the tuxedo plus a refund of tax. Acting on a de scription of the car used by the thief at the Montgomery Mall stor e and informat ion that two persons were returning the stol en tuxedo to th e Tysons Corner store, Officers Bennett and Turner located the car and waited. The officers saw Martin exit the store and enter th e car on the pa ssenger side. Gaines then exited the store "c arrying money" and sat on the driver's seat. The officers arrested Ga ines and Martin and recovered $400 in cash from the glove co mpartment in front of Martin and $644 from the floor be low Gaines. When the officers read Miranda warnings to Gaines, Gaines told the officers that Martin, his fr iend, had aske d Gaines to meet Martin at Montgome ry Mall and give Mart in a ride. According to Gaines, as he arri ved at the mall, "Marti n jumped in the car with a suit in his hand and said let's go, let' s go." Gaines said Martin asked him to retu rn the suit to anothe r Nordstrom' s store. According to Gaines, wh en he asked wh y Martin did not return the

- 3 -tuxedo to the Mo ntgomery Mall store, Martin repl ied that he did not know and that he di d not have identificati on. Martin said the tuxedo was worth $900 and offered Gain es $500 if he returned the suit. When the office rs asked Gaines "didn' t you think the suit could have been stol en," Gaines responde d that he "thought something was prob ably wrong with the suit , but [he] needed the money." As Gaines' witness, Martin testified at trial that he telephoned Gaines for a ride from Mo ntgomery Mall. As Gaines arrived, Martin stole the suit and left the mall. After he entered Gaines' ca r, 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 tuxe do but had no identification. Martin testified that he made no offer to Gaines and that Gaines return ed the tuxedo as a fa vor. Martin further testified that wh en the police arrived, Ga ines was in the process of counting and handin g the money to him. The trial judg e "believe[d] be yond a reasonable doubt that [Gaines] knew that th e suit was stolen . . . [because it] doesn't make any sense otherwis e." After making that finding, the trial judge convicted Ga ines of the obta ining money by false pretenses indictment. However, the trial judge acquitted Gaines on the charge of rece iving stolen goods indi ctment. This appeal followed.

- 4 -II. Gaines and the Comm onwealth 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 -