COURT OF APPEALS OF VIRGINIA
Present: Judges Fr ank, Humphreys and Petty Argued at Richmond, Virginia

SAMUEL AARON BRABSON MEMORANDUM OPINION * BY v. Record No. 2498-08-2 JUDGE WILLIAM G. PETTY MARCH 2, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge John B. Russell, Jr. (DurretteBradshaw, PLC, on brief), for appellant. Alice T. Armstrong, Assistan t Attorney Genera l II (William C. Mims, Attorney General, on brief), for appellee.
Following a bench trial, Samuel Aaron Brabs on was convicted of one count of larceny by false pretenses and one count of attempted lar ceny by false pretenses, in violation of Code §§ 18.2-178 and -26. Brabson now appeals thos e convictions, arguing that the evidence presented in the trial court was insufficient to prove his guilt. We disa gree with Brabson, and affirm his convictions.
I. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ unders tanding of the dispos ition of these narrow questions presented on appeal. We view those fa cts and incidents in the “light most favorable” to the Commonwealth, as th e prevailing party below, Finney v. Commonwealth , 277 Va. 83, 87,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 671 S.E.2d 169, 172 (2009), and we grant to it al l fair inferences flowing therefrom, Huffman v. Commonwealth , 51 Va. App. 469, 470, 658 S.E.2d 713, 713 (2008). In 2005, Brabson was involved in a minor traffi c accident, which he claimed aggravated a pre-existing spinal injury and le ft him unable to walk. Following the accident, Brabson filed an insurance claim with his automobile insuranc e carrier, Amica Mutual Insurance Company, and sought and received various benefits from the Vi rginia Department of Rehabilitative Services (DRS). After an insurance company employee pe rformed a routine “activ ity check” on Brabson, the company became suspicious and hired a private investigator to observe Brabson and determine whether he was truly paralyzed. Fo llowing an extensive investigation, Brabson was indicted and tried for one count of larceny by fa lse pretenses and one count of attempted larceny by false pretenses. The evidence presented at tr ial established that Brabson was not only capable of performing routine household chores, but also that he engaged in more strenuous activities such as mountain hiking and dancing. Brab son was convicted, and this appeal followed.
II.
A. Larceny By False Pretenses Brabson challenges his conviction for larce ny by false pretenses on the grounds that he “never obtained title to any of the property or services he received from the Department of Rehabilitative Services.” In order to convict an indi vidual for larceny by false pret enses in violation of Code § 18.2-178, the Commonwealth must prove ‘“(1) an inte nt 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.’” Reigert v. Commonwealth , 218 Va. 511, 518, 237 S.E.2d 803, 808 (1977) (quoting Bourgeois v. Commonwealth , 217 Va. 268, 272, 227 S.E.2d 714, 717 (1976)). In addition, the Commonwealth must prove that the defendant obtained not only- 3 - possession of, but title to the property. Cunningham v. Commonwealth , 219 Va. 399, 402, 247 S.E.2d 683, 685 (1978). “The gravamen of the offense . . . is the obtainment of ownership of property, by false represen tations or pretenses.” Quidley v. Commonwealth , 221 Va. 963, 965, 275 S.E.2d 622, 624 (1981) (citing R. Perkins, Criminal Law 306 (2d ed. 1969)). Thus, Brabson’s interpretation of the law is correct: the Commonwealth was required to prove that he obtained not just possession, but actual ownership, of the property that he stole by false pretenses. The indictment alleged the theft of three separate and distinct items—a computer and accompanying software, rehabilitative services from a physical therapist, and a wheelchair. Brabson argues that because the com puter and computer softwa re were only lent to him by DRS, he never obtained title to those items. In addition, he argues that he never received title to the payments for the rehabilitative serv ices. However, Brabson conceded both at trial during closing argument and on brief that he received title to the wheelchair. The theft of this item alone is sufficient to support the allegations contained in the indictment. Thus, the evidence is sufficient to support Brabson’s conviction for one count of larceny by false pretences. 1
B. Attempted Larceny by False Pretenses Brabson also argues that the evidence at tria l was insufficient to support his conviction of attempted larceny by false pretenses because “[t]he representations that [he] made to a third party, which were indirectly relaye d to his attorney and incorporated into an insurance settlement demand without his knowledge do not constitu te an attempt to commit larceny by false pretenses.” As explai ned below, we disagree.

1 Brabson’s question presented only raises the issue of the sufficiency of the evidence to prove that he received title to any of the property or services he received. On brief and at oral argument, Brabson argues that, because DRS was the “middle-man” in the wheelchair purchase, he did not receive tit le to the wheelchair from DRS , and, therefore, the Commonwealth did not prove that he committed larceny by false pretense s from DRS as alleged in the indictment. Because this argument raises a different legal issue from that encompassed in the question presented on appeal, we will not address it. See Rule 5A:12(c).- 4 - In order to convict an accused of a ttempted larceny by false pretenses, the Commonwealth must prove two elements: first, that the defendant had the specific intent to commit larceny by false pretenses, and second, that the defendant committed a direct, but ineffectual, act towards accomplishing the crime. Sizemore v. Commonwealth , 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978). At the trial below, the Commonwealth established that Brabson hired an attorney and sued his automobile insurance company, Amica, for one million dollars under the uninsured motorist coverage of his polic y for the injury he claimed to have suffered in the 2005 car accident. In order to establish the extent of Br abson’s injuries, and thus the amount of damages to which he was entitled, his at torney made several appointments for Brabson to be evaluated by rehabilitation and vocational experts. Br abson underwent a Physical Work Performance Evaluation (PWPE) administered by Kathy Dollins, a vocational e xpert. The counselor, Robert Jackson, prepared a report based on his evaluation of Brabson, hi s review of Brabson’s medical records, and his assessment of Brabson’s work qualifications. Jackson opined that Brabson could only work part-time with significant accommodations since the 2005 accident and that he could expect to lose 50% of hi s earning capacity over his lifetime as a result. Brabson’s attorney sent a demand letter to Amica, in wh ich he relied on Jackson’s report. At trial, Jackson testified th at during the evaluation, Brabson remained in his wheelchair and indicated to Jackson that he was wheelch air bound. Brabson told Jackson that “[h]e was able to get up on a walker, but he indicated that it was essentially for st retching, but [he] was not functional with a walker.” Jackson did not physically examine Brabson; instead, Jackson discussed “functionality, what he could do and what he couldn’t do” with Brabson. Jackson testified that Brabson stated he “was able to s it for about an hour at a time, two hours maximum. . . . He must lay down and put heat and ice on his back . . . and do massage and stretching- 5 - techniques . . . after s hort activities.” Brabson never told Jackson that he was actually able to walk, hike, and dance during the relevant time. Jackson testified that, had he known Brabson’s actual abilities, it would have “absolutely” change d his opinion as to Brabson’s ability to work. Brabson argues that there was insufficient evid ence to prove he had th e requisite specific intent to commit larceny against Amica by false pretences because, he contends, the Commonwealth did not prove that he “had specific knowledge of how any specific action or statement by him was to be used, there can be no proof, even circumstantial, of a specific intent by Brabson, at the time, to commit larceny by false pretenses against Amica.” Appellant’s Br. at
21-22. “Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.” Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). The Commonwealth may prove intent “by the circumstances , including a person’s con duct and statements.” Robertson v. Commonwealth , 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000) (citing Nobles v. Commonwealth , 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). Further, “‘[t]he fact finder ma y infer that a person intends the immediate, direct, and necessary consequen ces of his voluntary acts.’” Id. (quoting Bell v. Commonwealth , 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991)). Fi nally, “inferences to be drawn from proven facts, so long as they are reasonable, ar e within the province of the trier of fact.” Hancock v. Commonwealth , 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Here, the evidence in the trial court proved th at Brabson lied about the extent of his injuries and his abilities to both his doctors and to Jackson, who performed his vocational assessment. The evidence also established that Br abson hired an attorney and sued his insurance company, seeking benefits under his policy. The tria l court, sitting in this case as the trier of facts, could infer from this evidence that Brabs on fully intended his attorney to zealously pursue- 6 - his lawsuit like any other and that Brabson intend ed his misrepresentations to his physicians and to Jackson to convince his insurance company that he was no longer able to work, which would increase the amount of money he would receive fro m them. Thus, the evidence was sufficient to show that Brabson had the requisite specific intent to obtain money to which he was not entitled. Brabson also argues that the evidence does not establish the second element of attempted larceny by false pretenses: that he made a direct, albeit ineffect ual, act in furtherance of the crime. Brabson contends that “the Commonwealth ’s best case is that Brabson misrepresented his condition to Ms. Dolling who, in turn, passed it along to Dr. Murphy [one of Brabson’s physicians], who, in turn, passed it along to Robert Jackson, [Brabson’s at torney’s] rehabilitation expert, who prepared a report to [the attorney], who incorporated it as part of a settlement demand to Amica.” Thus, Brabson argues, his ac t was too attenuated from the misrepresentation to Amica to fulfill the direct act element of attempted larceny by false pretenses. However, “‘[t]he attempt contemplated by the statute must be manifested by acts which would end in the consummation of the partic ular offence, but for the intervention of circumstances independent of the will of the party.’” Hicks v. Commonwealth , 86 Va. 223, 228, 9 S.E. 1024, 1026 (1889) (quoting People v. Murray , 14 Cal. 159, 160 (1859)). Moreover, “[t]he victim of the fraudulent scheme need not be the person to whom the false pretense or misrepresentation is made.” Mosteller v. Commonwealth , 222 Va. 143, 148, 279 S.E.2d 380, 382 (1981). There, the appellant, who was a sales repr esentative for a furniture manufacturer, provided false information that was used to prov ide state-owned institutions with inflated bids for furniture. Id. at 146-47, 279 S.E.2d at 381. When th e Commonwealth’s Department of Purchases and Supplies eventually approved a bi d and paid the vendors, the appellant pocketed the difference between the true value of the furnit ure and the inflated figures he provided to the- 7 - bidding vendors. Id. Thus, while Mosteller made false re presentations to the vendors regarding the cost of the furniture and “fictitious ancillary services” that he never provided, he ultimately defrauded the Commonwealth. Id. at 147, 279 S.E.2d at 381. Similarly, the appellant in Quidley , 221 Va. at 693, 275 S.E.2d at 622, used a falsified purchase order from the Norfolk Social Service Bu reau to buy clothing at J.C. Penney Company. Id. at 964, 275 S.E.2d at 624. Penney’s did, in fact , receive payment from the Bureau, and the appellant challenged her convict ion on the grounds that the indi ctment, which indicated that Penney’s had been the victim of the larceny by fa lse pretenses, was at fatal variance with the proof adduced at trial. Id. at 965, 275 S.E.2d at 624. Our Suprem e Court rejected that argument, and held that the crime of false pretenses is “complete when the fraud intended is consummated by obtaining the property sought by means of the false representations . . . . [I]t is sufficient if the fraud of the accused has put the victim in such a position that he may eventually suffer loss.” Id. at 965, 275 S.E.2d at 625 (citations omitted). The evidence in this case established that Brabson consistently made false representations regarding his disability and work capacity to whomever he needed to in order to gain financially. These misrepresentations included those made to the experts employed by his attorney to further his lawsuit. Accordingly, the trial court had adequate evidence to determine that Brabson had made a direct act in furtherance of the crime of larceny by false pretences.
III. For the foregoing reasons, Brabson’s convictions are affirmed. Affirmed.