COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bumgardner 

Argued at Richmond, Virginia 

TRACY M. BOLDEN 

 OPINION BY 

v. Record No. 2036-97-2 JUDGE JERE M. H. WILLIS, JR. 

 NOVEMBER 24, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 John W. Parsons (Law Office of Wood & 

Wood, P.C., on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from her conviction of obtaining an automobile by 

false pretenses in violation of Code § 18.2-178, Tracy M. Bolden 

contends that the evidence failed to prove that by virtue of her 

fraud, both title to and possession of the automobile passed to 

her from the Toyota Motor Credit Corporation (Toyota).1 We agree 

and reverse her conviction. 

 I. 

 On appeal, we review the evidence in the 

light most favorable to the Commonwealth, 

granting to it all reasonable inferences 

fairly deducible therefrom. The judgment of 

a trial court sitting without a jury . . . 

will not be set aside unless it appears from 

the evidence that the judgment is plainly 

wrong or without evidence to support it. 

 

 1Bolden was convicted also of forgery and uttering. 

However, she has appealed only her conviction for larceny by 

false pretenses. 
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Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987) (citation omitted). 

 On February 29, 1996, Bolden received a loan from Toyota to 

finance her purchase of a 1996 Toyota RAV-4 motor vehicle. The 

vehicle's certificate of title listed Bolden as the owner and 

Toyota as the lienholder. 

 On July 5, 1996, Bolden went to a branch office of the 

Department of Motor Vehicles (DMV) in Henrico County and applied 

for a duplicate certificate of title to the vehicle. See Code 

§ 46.2-607. She presented a letter purportedly from Toyota 

stating that she had satisfied the lien on the vehicle. Based 

upon her application and the letter, DMV issued Bolden a 

duplicate certificate of title, showing no lien, and revised its 

records to reflect that Toyota's lien had been satisfied. 

 In fact, Bolden had made no payment on the loan. John 

Gregory Kirby, a Toyota customer service supervisor, testified 

that Toyota had not mailed the lien release statement to Bolden 

and that the letter presented by Bolden to DMV was not from 

Toyota. He testified that in the normal course of business, 

Toyota would issue a lien release letter only if the loan was 

paid in full and the title to the vehicle had been misplaced. 

Because Bolden had not paid her loan in full, Toyota retained the 

certificate of title. Bolden admitted to Special Agent Taylor 

Jones of the Virginia State Police that she had falsified the 

letter in order to obtain a lien-free duplicate certificate of 
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title so that she could sell the vehicle. 
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 II. 

 The indictment charged that Bolden 

 on or about July 5, 1996 . . . did obtain, by 

false pretenses, from Toyota Motor Credit 

Corporation, a 1996 Toyota, RAV-4, 

VIN#JT3HP10V9T0081119, with a value in excess 

of $200.00, in violation of Virginia Code 

§ 18.2-178 . . . . 

 The indictment does not charge and the Commonwealth does not 

argue that Bolden originally obtained the car from the dealership 

by false pretenses, only that she obtained it from the lienholder 

by false pretenses. Bolden contends that the Commonwealth failed 

to prove that she obtained the 1996 Toyota RAV-4 motor vehicle 

from Toyota by false pretenses. She argues that prior to her 

alleged fraud, Toyota did not own or possess the vehicle. 

Rather, she contends, she owned and possessed it, subject to the 

lien. We agree. 

 A. 

 In a prosecution for 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) (citations omitted). "The gravamen of the 

offense . . . is the obtainment of ownership of property, by 

false representations or pretenses." Quidley v. Commonwealth, 

221 Va. 963, 966, 275 S.E.2d 622, 624 (1981) (citations omitted). 
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 "An essential element of larceny by false pretenses is that both 

title to and possession of property must pass from the victim to 

the defendant (or his nominee)." Cunningham v. Commonwealth, 219 

Va. 399, 402, 247 S.E.2d 683, 685 (1978). 

 B. 

 Bolden fraudulently acquired a duplicate certificate of 

title indicating no lien on the vehicle. She used the 

fraudulently obtained certificate of title to sell the vehicle 

for value to a bona fide purchaser, to the detriment of the 

lienholder. See Toyota Motor Credit Corp. v. C.L. Hyman Auto 

Wholesale, Inc., __ Va. __, __, __ S.E.2d __, __ (1998). At the 

time Bolden acquired the new certificate of title, Toyota neither 

owned nor possessed the vehicle. It merely held a lien that was 

recorded on the title. Thus, Bolden did not obtain ownership or 

possession of the vehicle from Toyota by virtue of the fraud 

perpetrated on DMV. 

 The dispositive issue is whether title to and possession of 

the vehicle passed from Toyota to Bolden when she fraudulently 

obtained a duplicate certificate of title from DMV. "The owner 

of an automobile is the party who has legal title to it." Hall, 

Inc. v. Empire Fire & Marine Ins. Co., 248 Va. 307, 309, 448 

S.E.2d 633, 635 (1994). See Code § 46.2-100 (defining "owner" as 

"a person who holds legal title to a vehicle"); First Virginia 

Bank v. Sutherland, 217 Va. 588, 593, 231 S.E.2d 706, 709 (1977) 

(decided under predecessor to Code § 46.2-100). The certificate 
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of title showed Bolden as owner, designating that she held legal 

title to the vehicle. A certificate of title serves not only as 

a substitute recording system but also as evidence of ownership. 

See Travelers Indem. Co. v. Nationwide Mut. Ins. Co., 227 F. 

Supp. 958, 963 (W.D. Va. 1964). Thus, when Bolden fraudulently 

obtained the duplicate title, she was already the owner of the 

vehicle and already possessed it. 

 Title passed to Bolden upon the delivery of the vehicle to 

her and issuance of the original certificate of title. See Code 

§ 46.2-628; Nationwide Ins. Co. v. Storm, 200 Va. 526, 529, 106 

S.E.2d 588, 590 (1959). Cf. Davies v. Commonwealth, 15 Va. App. 

350, 353, 423 S.E.2d 839, 841 (1992) (title passes upon seller's 

delivery of goods in retail sales transaction). Bolden's 

fraudulent procurement or receipt of the duplicate certificate 

effected no further delivery of the vehicle or transfer of title 

to her. Code § 46.2-628, entitled "How certificate of title 

transferred," provides, in relevant part: 

 The owner of a motor vehicle . . . registered 

under this chapter, when transferring or 

assigning his title or interest thereto, 

shall fully and correctly endorse the 

assignment and warranty of title on the 

certificate of title of the motor vehicle 

. . . to its purchaser, with a statement of 

all security interests on it, and shall 

deliver the certificate to the purchaser or 

transferee at the time of delivering the 

motor vehicle . . . . 

Id. Bolden was the legal owner of the vehicle both prior to and 

subsequent to her fraudulent conduct. 
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 Toyota's physical possession of the certificate of title did 

not give it ownership of the vehicle. The "owner" of a vehicle 

is required by statute to obtain a certificate of title or 

ownership, Code § 46.2-600, and to deliver it to the person 

holding a security interest. Code § 46.2-641. Upon satisfaction 

of all security interests by the owner, "the certificate of title 

shall be delivered . . . to the owner." Id. Although Toyota 

kept physical possession of the certificate of title, it never 

held title to the vehicle. See Toyota, __ Va. at __, __ S.E.2d 

at __. 

 Toyota never had possession or ownership of the vehicle. 

Toyota never asserted a right to repossess it. See Code 

§ 8.9-503 (codifying secured party's right to take possession 

after default). Bolden maintained actual and uninterrupted 

possession of the vehicle before, during and after her receipt of 

the duplicate certificate. 

 Under Code § 18.2-178, a thief may not steal by false 

pretenses from his own lawful possession. But see Code 

§ 18.2-115 (criminalizing fraudulent disposal of property subject 

to lien). Because Bolden's fraud resulted in neither title nor 

possession of the vehicle passing from Toyota to her, we reverse 

her conviction for larceny by false pretenses and dismiss the 

charge. 

 Reversed and dismissed.