Commonwealth v. Bryan

Thomas D. Horne, Judge

Steve Sincavage, Esquire
Assistant Commonwealth Attorney
Office of the Commonwealth Attorney
20 East Market Street
Leesburg, VA 20176 Todd Sanders, Esquire
Sanders & Kissler
204 South King Street
Leesburg, VA 20175 Gentlemen:

This case came before the Court on the motion of the defendant to set aside the verdicts of the jury. The Court denied the motion with respect to each of the counts of the Indictment excepting that charging a violation of Va. Code Ann. §18.2-178 (Count VII). It is alleged and the jury has found that the defendant procured the signature of another to a writing, the false making of which would be forgery. The Court took further consideration of the motion under advisement and counsel were invited to brief the matter further should they so desire.

The jury might fairly conclude from the evidence that the defendant caused the checks to be signed at a time when the party signing the checks would not have carefully considered the reason for payment. In addition, the evidence would support the inference that the defendant presented the checks for payments to which she was not entitled. Although it may be inferred that payment was intended by the defendant, the gravamen of the offense charged is in the intent to defraud, and not in whether or not the execution of the document would support a prosecution for forgery.

Thus, one commentator has noted,

Apparently the false pretense can be either a misrepresentation extrinsic to the document, fraud in the inducement, or a misrepresentation about the document, fraud in the factum. An example of the former would arise if the accused, in order to induce the victim to sign a note, falsely represented to the victim that the victim's child was indebted to the accused. The latter would arise if the accused fraudulently substituted a document for one which the victim intended to sign; substitution of a deed for a will is an example.
Robert Douglas Groot, Criminal Offenses and Defenses in Virginia 506 Thompson West, 2006

The jury could fairly conclude that the defendant did not incur the expenses and that the checks were signed upon the false impression, created by the defendant, that they were proper payments.

Accordingly, the motion to strike count VII is denied.

Very truly yours,

Thomas D. Horne, Judge