COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

NATHAN B. KIRK 

 MEMORANDUM OPINION* BY 

v. Record No. 2735-97-4 JUDGE DONALD W. LEMONS 

 DECEMBER 8, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Jean H. Im, Assistant Public Defender (Office 

of the Public Defender, on brief), for 

appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Nathan B. Kirk appeals his conviction for obtaining property 

by false pretenses alleging that the trial court improperly 

instructed the jury on the elements of that offense. Finding no 

error, we affirm his conviction. 

 On June 13, 1995, appellant verbally presented a purchase 

order number to James Payne, an employee in the parts department 

of OurisMan Toyota car dealership. Payne then gave Kirk a 

compact disc player and generated a receipt that was signed by 

Kirk. Payne testified that he knew Kirk was employed by Farrish 

Oldsmobile and that he had done business with him in the same 

capacity on at least three or four prior occasions. Payne 

testified that he believed Kirk was giving him a valid purchase 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

order number and that he gave him the compact disc player on that 

basis. 

 John Holcombe, employed as a parts manager by Farrish 

Oldsmobile, testified that he did not pay the bill from OurisMan 

Toyota for the compact disc player because the Oldsmobile 

dealership never received the item. Farrish Oldsmobile had no 

record of the purchase order number that Kirk provided to Payne. 

 Kirk was charged with obtaining property by false pretenses, 

a violation of Code § 18.2-178. At the conclusion of the 

evidence at his jury trial, Kirk requested the following 

instruction: 

 Nathan Kirk is charged with the crime of 

obtaining property by false pretense or 

token. The Commonwealth must prove beyond a 

reasonable doubt each of the following 

elements of that crime: 

 (1) that Mr. Kirk made false representations of 

existing facts or past events to Fairfax 

OurisMan Toyota; and 

 (2) that Mr. Kirk made such representations 

with the knowledge of their falsity; and 

 

 (3) that the representations were made with 

the intent to defraud; and 

 (4) that the false representations were used 

for the purpose of perpetrating the 

fraud; and 

 (5) that an actual fraud occurred; and 

 (6) that the false pretenses induced the 

owner to part with the property; and 

 (7) that both the title and possession of 

the property passed from the owner to 

Mr. Kirk; and 
- 3 - 

 (8) that the property received was worth 

$200.00 or more. 

 If you find from the evidence that the 

Commonwealth has proved beyond a reasonable 

doubt each of the above elements of the 

offense as charged, then you shall return a 

verdict of guilty, but shall not fix 

punishment until you have received further 

instructions from the Court. 

 If you find from the evidence that the 

Commonwealth has failed to prove beyond a 

reasonable doubt any one or more of the 

elements of the offense, then you shall find 

the defendant not guilty. 

 The court granted the requested instruction, but deleted 

paragraph (4) finding that it was duplicative of paragraph (3). 

The jury found Kirk guilty of obtaining property by false 

pretenses, and the court affirmed the jury's verdict. Kirk 

maintains that removal of paragraph (4) from the instruction 

resulted in an incomplete instruction and denied him a fair 

trial. 

 In order to sustain a conviction for larceny 

by false pretenses, the Commonwealth must 

prove: "(1) an intent to defraud; (2) an 

actual fraud; (3) use of false pretenses for 

the purpose of perpetrating the fraud; and 

(4) accomplishment of the fraud by means of 

the false pretenses used for the purpose, 

that is, the false pretenses to some degree 

must have induced the owner to part with his 

property." 

Bourgeois v. Commonwealth, 217 Va. 268, 272, 227 S.E.2d 714, 717 

(1976) (citation omitted). 

 In this context, the false pretense must be a 

representation as to any existing fact or 

past event. But merely showing that the 

accused knowingly stated what was false is 

not sufficient; there must also be proof that 
- 4 - 

his intent was to defraud. Furthermore, the 

fraudulent intent must have existed at the 

time the false pretenses were made, by which 

the property was obtained. 

Reigert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 

807-08 (1977) (citations omitted). 

 In order for the jury to convict the defendant, the 

instruction given by the trial judge required proof beyond a 

reasonable doubt that: (1) Kirk made a false representation of a 

past event or existing fact; (2) Kirk had the intent to defraud 

Ourisman Toyota when the false representations were made; (3) 

because of the false representations, Ourisman Toyota parted with 

title to and possession of the property; and (4) the value of the 

property was over $200. 

 A trial court has a duty to avoid giving redundant or 

repetitive instructions. See League v. Commonwealth, 9 Va. App. 

199, 210, 385 S.E.2d 232, 239 (1989). All of the elements 

necessary for a conviction of obtaining property by false 

pretenses were contained in the instruction. Although the trial 

court deleted paragraph (4), finding that it was duplicative of 

paragraph (3), paragraph (4) ("that the false representations 

were used for the purpose of perpetrating the fraud") was 

actually duplicative of paragraph (6) ("that the false 

representations induced the owner to part with the property"). 

It was properly removed from the instruction. The jury was 

instructed on all elements of the offense. 

 The conviction is affirmed. 
- 5 - 

 Affirmed.