## Facts

- Robert Lee Baker and Donald Shumaker went to an automobile dealership knowing customers had to leave a vehicle as security to test-drive a dealer vehicle.
- After receiving a signal from Baker, Shumaker asked to test-drive a Jeep.
- As security, they left a truck that they had fraudulently obtained elsewhere.
- Baker drove the Jeep away and never returned it; he paid Shumaker $100 for assisting.
- The dealership retained the title documents, and there was no evidence it transferred title to Baker or Shumaker.
- The Commonwealth indicted and tried Baker for grand larceny solely on a larceny-by-false-pretenses theory.
- The trial court gave the Commonwealth’s only substantive instruction defining false pretenses in terms of obtaining possession, without requiring passage of title.

## Issues

1. Whether the jury instruction on larceny by false pretenses was erroneous because it omitted the requirement that title pass from the victim to the defendant or his nominee.
2. Whether the evidence was sufficient to prove larceny by false pretenses absent proof that the dealership transferred title to the Jeep.
3. Whether the conviction could be affirmed on appeal as larceny by trick, even though the case was charged and submitted to the jury as false pretenses.

## Decision

- The Supreme Court of Virginia reversed the conviction.
- The jury instruction was erroneous because it addressed only possession and omitted transfer of title, an essential element of larceny by false pretenses.
- The evidence was insufficient for false pretenses because there was no proof the dealership intended to pass title to Baker or Shumaker.
- The Court refused to affirm on a larceny-by-trick theory because Baker was prosecuted and instructed on false pretenses and was entitled to clear notice of the specific charge.

## Legal Principles

- Larceny by false pretenses requires that both title to and possession of property pass from the victim to the defendant (or the defendant’s nominee).
- The gravamen of false pretenses is obtaining ownership, not merely temporary custody or possession.
- A jury instruction defining false pretenses must require the jury to find transfer of title; an instruction limited to possession omits an element of the offense.
- A conviction may not be sustained on appeal by recharacterizing it as a different offense with different elements when the defendant was not clearly informed, charged, and tried on that theory.

## Conclusion

Because the Commonwealth chose to prosecute larceny by false pretenses but failed to prove (and failed to require the jury to find) any transfer of title, the conviction for grand larceny was reversed and could not be salvaged by an after-the-fact shift to larceny by trick.


Baker v. Commonwealth, 225 Va. 192, 300 S.E.2d 788 (1983)