COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Annunziata 

Argued at Alexandria, Virginia 

ROBERT EUGENE LEE 

 MEMORANDUM OPINION* BY 

v. Record No. 0770-97-2 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 24, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

William H. Ledbetter, Jr., Judge 

 James J. Ilijevich (Office of the Public 

Defender, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Robert Eugene Lee contends that the evidence is insufficient 

to support his conviction of obtaining money by false pretenses 

with the intent to defraud in violation of Code § 18.2-178. We 

agree, and reverse. 

 I. 

 Margaret Dahmen rented rooms in her Spotsylvania County home 

to Lee and his wife, Carol Lee. On or about November 1, 1995, 

Carol told Mrs. Dahmen that she had inherited some money and 

showed Mrs. Dahmen a letter from a New York attorney reporting a 

possible distribution to her. Lee was not present at this 

conversation. Carol asked whether she could deposit the funds in 

Mrs. Dahmen's savings account. Mrs. Dahmen agreed and gave Carol 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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her account number so that the attorney could wire the funds 

directly to that account. 

 On November 7, 1995, Carol told Mrs. Dahmen, in the presence 

of Lee, that money had been wired to the account. Carol then 

asked for a check for $2,500 so that she could pay a medical 

bill. Mrs. Dahmen handed a blank check to Carol who handed it to 

Lee. Lee then filled out the check at Mrs. Dahmen's request, and 

she signed it. 

 Two days later, Carol told Mrs. Dahmen that she and Lee were 

going away for a few days. Mrs. Dahmen never saw them again. 

She discovered thereafter that no money had been deposited into 

her account on behalf of Carol. However, the check made payable 

to Lee had been cashed. 

 II. 

 The judgment of a trial court sitting without a jury will 

not be set aside unless it is plainly wrong or without evidence 

to support it. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). When the sufficiency of the evidence is 

challenged on appeal, "it is our duty to look to that evidence 

which tends to support the verdict and to permit the verdict to 

stand unless plainly wrong." Snyder v. Commonwealth, 202 Va. 

1009, 1116, 121 S.E.2d 452, 457 (1961). 

 Viewing the evidence in the light most favorable to the 

Commonwealth, Martin, 4 Va. App. at 443, 358 S.E.2d at 418, we 

find that the Commonwealth failed to prove beyond a reasonable 
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doubt that Lee knew that his wife's money had not been deposited 

in Mrs. Dahmen's account. "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) (citation omitted). 

 Lee made no representation to Mrs. Dahmen concerning the 

inheritance or its deposit into her savings account. Thus, the 

Commonwealth was required to produce circumstantial or direct 

evidence proving that he had such guilty knowledge as to prove 

his knowledge of the falsehood at the time Carol made the false 

statement. See Sult v. Commonwealth, 221 Va. 915, 275 S.E.2d 608 

(1981) (holding evidence failed to show principal's knowledge of 

fraud); Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 

759 (1980) (concluding that participation in purchase, sale and 

transfer of vehicles showed knowledge); Cunningham v. 

Commonwealth, 219 Va. 399, 402-03, 247 S.E.2d 683, 685 (1978) 

(finding that defendant concealed fact that she stopped payment 

on check to obtain possession of car). 

 No such knowledge, inferred or otherwise, was shown. Lee's 

mere presence and filling out the check at Mrs. Dahmen's request 

did not prove that he had knowledge of the underlying deception 

at the time Carol made the false statements. See Riegert v. 
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Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 808 (1977) 

(fraudulent intent must have existed at the time the false 

statement was made). While public policy seeks free and 

confidential communication between husband and wife, see Edwards 

v. Commonwealth, 20 Va. App. 470, 474-75, 457 S.E.2d 797, 799-800 

(1995), we cannot presume that information known to one is known 

to the other. 

 Accordingly, the conviction is reversed and the charge is 

dismissed. 

 Reversed and dismissed.