Nonpayment on Rental TV Not Fraud
Published: October 20, 2011
Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals
The Court of Appeals reverses defendant’s bench trial conviction for fraudulent conversion of a leased plasma television set and dismisses the indictment; without the written statutory notice to return under Va. Code § 18.2-118(b), the commonwealth’s evidence was insufficient to prove intent to defraud based on defendant’s failure to make the agreed monthly rental payments.
On July 16, 2009, defendant entered a 104-week lease purchase agreement for a 50-inch plasma television set with a rent-to-own firm. The agreement required an initial payment of $10, followed by weekly payments of $37.99 or, at her option, monthly payments of $123.99. The set was valued at $2,370 with total payments due of $3,951.
The agreement allowed defendant to return the set if she was unable to make the payments. Defendant’s application provided her DMV identification and contact information for her landlord, employer and six references. A manager for the rental firm approved her application the same day and another employee delivered the set the next day. After defendant failed to make further payments or return the set, the manager had difficulty contacting her and her references; a cell phone was listed for the landlord and some numbers listed were no longer in service. The manager did not send defendant a written demand to return the set under Code § 18.2-118(b). The trial court denied defendant’s motions to strike, convicted her of fraudulent conversion and sentenced her to five years with three years suspended.
Defendant’s appeal renews her challenge to the sufficiency of evidence to prove the required intent to defraud. We agree her conviction must be reversed and her indictment dismissed. We review sufficiency of evidence under a deferential standard. However, the record here is insufficient as a matter of law to prove intent to defraud beyond a reasonable doubt. Defendant was not sent the written demand to return in 10 days authorized in §18.2-118(b) for prima facie evidence of intent to defraud. The record evidence proves only that defendant breached her written lease agreement. We held in Commonwealth v. Hensley, 7 Va. App. 468 (1988), that without fraud an accused cannot be imprisoned for mere failure to pay a contract debt.
Defendant’s conviction is reversed and her indictment dismissed.
Bert v. Commonwealth (Felton), No. 1499-10-1, Oct. 18, 2011, Portsmouth Cir. Ct. (Grissom) Brenda C. Spry for appellant, John W. Blanton AAG. VLW 011-7-318 (UP), 6 pp.