COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata Argued at Salem, Virginia
JANE MARIE BRATTON MEMORANDUM OPINION * BY v. Record No. 1003-97-3 JUDGE ROSEMARIE ANNUNZIATA JUNE 9, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Richard C. Pattisall, Judge Mark D. Kidd (Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Jane Marie Bratton (appellant) appeals her conviction under
Code § 18.2-181 for issuing a bad check with the intent to
defraud. She contends that the trial court erred in relying upon
the presumptions contained in Code §§ 18.2-183 and 18.2-184, and
that, absent the presumptions, the evidence was insufficient to
support her conviction. We affirm.
We view the facts in the light most favorable to the
Commonwealth, the party prevailing below. Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975)). Mark Bierley, owner of Bronco Service,
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. performed maintenance and repairs on appellant's motor vehicle at
a cost of $230.48. Appellant paid Bierley with a check for the
full amount of the service on September 10, 1996. After Bierley
attempted to deposit the check, the bank returned the check,
marked "Account Closed." In response to Bierley's query, the
bank informed him that the account had been closed on September
8th or 9th. Bierley contacted appellant about the check; she
promised to pay the amount but did not do so. Bierley sent a
certified letter to appellant about the check on September 22,
1996. Appellant paid the amount due the day before her court
appearance on November 14, 1996. She testified during the
sentencing phase of the trial that a bank employee told her on
September 11, 1996 that the bank was going to close her account. In finding appellant guilty, the court implicitly employed
the presumptions contained in Code §§ 18.2-183 and 18.2-184,
which remained, in the court's view, unrebutted. The court
sentenced appellant to eighteen months incarceration.
Appellant contends that the court erred in applying the
presumptions found in Code §§ 18.2-183 and 18.2-184. 1 Appellant
1 Code § 18.2-183 provides in relevant part:
In any prosecution or action under the preceding sections, the making or drawing or uttering or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company or other
2 further contends that, absent the statutory presumptions, the
evidence was insufficient to support her conviction. We find
appellant's contentions to be without merit.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Martin v.
depository unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with interest, and protest fees (if any), within five days after receiving written notice that such check, draft, or order has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the last known address of the maker or drawer shall be deemed sufficient and equivalent to notice having been received by the maker or drawer.
* * * * * * * When a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case.
Code § 18.2-184 provides:
In any prosecution or action under the preceding sections, any notation attached to or stamped upon a check, draft or order which is refused by the drawee because of lack of funds or credit, bearing the terms "not sufficient funds," "uncollected funds," "account closed," or "no account in this name," or words of similar import, shall be prima facie evidence that such notation is true and correct.
3 Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)
(citing Code § 8.01-680). Code § 18.2-181 prohibits drawing a
check, knowing that the account drawn upon lacks sufficient funds
or credit to pay the check, with the intent to defraud. Cf. Bray
v. Commonwealth, 9 Va. App. 417, 422, 388 S.E.2d 837, 839-40
(1990) (citing Huntt v. Commonwealth, 212 Va. 737, 739, 187
S.E.2d 183, 185 (1972)). The intent to defraud "is an
indispensable element of the crime and the burden is upon the
Commonwealth to prove its existence at the time of drawing or
uttering the check." Rosser v. Commonwealth, 192 Va. 813, 816,
66 S.E.2d 851, 853 (1951).
The element of intent to defraud is satisfied by the
operation of the presumption under Code § 18.2-183 which provides
in relevant part that, "[w]hen a check is drawn on a bank in
which the maker or drawer has no account, it shall be presumed
that such check was issued with intent to defraud." 2 "For the
presumption of fraudulent intent to arise, the requirements of
the statute must be met by admissible evidence, not by
speculation or suspicion." Sylvestre v. Commonwealth, 10 Va.
App. 253, 258, 391 S.E.2d 336, 339 (1990). The evidence supports
the court's application of the presumption. Appellant admitted
that she wrote a check upon a bank. The Commonwealth's evidence
2 Because the check was "drawn on a bank in which the maker or drawer has no account," the receiver of the check need not give notice to trigger the presumption of intent to defraud. Code § 18.2-183.
4 showed that appellant's check was returned with the stamp
"Account Closed." The evidence further supports the application
of the presumption under Code § 18.2-184 which provides, "[i]n
any prosecution or action under the preceding sections, any
notation attached to or stamped upon a check, draft, or order
which is refused by the drawee because of lack of funds or
credit, bearing the terms . . . 'account closed,' . . . shall be
prima facie evidence that such notation is true and correct."
Therefore, appellant had "no account" within the meaning of Code
§ 18.2-183, and the trial court properly applied the presumption
of intent to defraud found in Code § 18.2-183. The evidence further supports the trial court's
consideration of the presumption under Code § 18.2-183 that
appellant knew she had insufficient funds in her account when she
wrote the check. Bierley sent appellant a certified letter on
September 22, 1996 notifying her that the check had not been
paid.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata Argued at Salem, Virginia
JANE MARIE BRATTON MEMORANDUM OPINION * BY v. Record No. 1003-97-3 JUDGE ROSEMARIE ANNUNZIATA JUNE 9, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Richard C. Pattisall, Judge Mark D. Kidd (Osterhoudt, Ferguson, Natt, Aheron & Agee, P.C., on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Jane Marie Bratton (appellant) appeals her conviction under
Code § 18.2-181 for issuing a bad check with the intent to
defraud. She contends that the trial court erred in relying upon
the presumptions contained in Code §§ 18.2-183 and 18.2-184, and
that, absent the presumptions, the evidence was insufficient to
support her conviction. We affirm.
We view the facts in the light most favorable to the
Commonwealth, the party prevailing below. Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975)). Mark Bierley, owner of Bronco Service,
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. performed maintenance and repairs on appellant's motor vehicle at
a cost of $230.48. Appellant paid Bierley with a check for the
full amount of the service on September 10, 1996. After Bierley
attempted to deposit the check, the bank returned the check,
marked "Account Closed." In response to Bierley's query, the
bank informed him that the account had been closed on September
8th or 9th. Bierley contacted appellant about the check; she
promised to pay the amount but did not do so. Bierley sent a
certified letter to appellant about the check on September 22,
1996. Appellant paid the amount due the day before her court
appearance on November 14, 1996. She testified during the
sentencing phase of the trial that a bank employee told her on
September 11, 1996 that the bank was going to close her account. In finding appellant guilty, the court implicitly employed
the presumptions contained in Code §§ 18.2-183 and 18.2-184,
which remained, in the court's view, unrebutted. The court
sentenced appellant to eighteen months incarceration.
Appellant contends that the court erred in applying the
presumptions found in Code §§ 18.2-183 and 18.2-184. 1 Appellant
1 Code § 18.2-183 provides in relevant part:
In any prosecution or action under the preceding sections, the making or drawing or uttering or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company or other
2 further contends that, absent the statutory presumptions, the
evidence was insufficient to support her conviction. We find
appellant's contentions to be without merit.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it." Martin v.
depository unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with interest, and protest fees (if any), within five days after receiving written notice that such check, draft, or order has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the last known address of the maker or drawer shall be deemed sufficient and equivalent to notice having been received by the maker or drawer.
* * * * * * * When a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case.
Code § 18.2-184 provides:
In any prosecution or action under the preceding sections, any notation attached to or stamped upon a check, draft or order which is refused by the drawee because of lack of funds or credit, bearing the terms "not sufficient funds," "uncollected funds," "account closed," or "no account in this name," or words of similar import, shall be prima facie evidence that such notation is true and correct.
3 Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)
(citing Code § 8.01-680). Code § 18.2-181 prohibits drawing a
check, knowing that the account drawn upon lacks sufficient funds
or credit to pay the check, with the intent to defraud. Cf. Bray
v. Commonwealth, 9 Va. App. 417, 422, 388 S.E.2d 837, 839-40
(1990) (citing Huntt v. Commonwealth, 212 Va. 737, 739, 187
S.E.2d 183, 185 (1972)). The intent to defraud "is an
indispensable element of the crime and the burden is upon the
Commonwealth to prove its existence at the time of drawing or
uttering the check." Rosser v. Commonwealth, 192 Va. 813, 816,
66 S.E.2d 851, 853 (1951).
The element of intent to defraud is satisfied by the
operation of the presumption under Code § 18.2-183 which provides
in relevant part that, "[w]hen a check is drawn on a bank in
which the maker or drawer has no account, it shall be presumed
that such check was issued with intent to defraud." 2 "For the
presumption of fraudulent intent to arise, the requirements of
the statute must be met by admissible evidence, not by
speculation or suspicion." Sylvestre v. Commonwealth, 10 Va.
App. 253, 258, 391 S.E.2d 336, 339 (1990). The evidence supports
the court's application of the presumption. Appellant admitted
that she wrote a check upon a bank. The Commonwealth's evidence
2 Because the check was "drawn on a bank in which the maker or drawer has no account," the receiver of the check need not give notice to trigger the presumption of intent to defraud. Code § 18.2-183.
4 showed that appellant's check was returned with the stamp
"Account Closed." The evidence further supports the application
of the presumption under Code § 18.2-184 which provides, "[i]n
any prosecution or action under the preceding sections, any
notation attached to or stamped upon a check, draft, or order
which is refused by the drawee because of lack of funds or
credit, bearing the terms . . . 'account closed,' . . . shall be
prima facie evidence that such notation is true and correct."
Therefore, appellant had "no account" within the meaning of Code
§ 18.2-183, and the trial court properly applied the presumption
of intent to defraud found in Code § 18.2-183. The evidence further supports the trial court's
consideration of the presumption under Code § 18.2-183 that
appellant knew she had insufficient funds in her account when she
wrote the check. Bierley sent appellant a certified letter on
September 22, 1996 notifying her that the check had not been
paid. Appellant failed to pay Bierley within five days of
receiving the notice, and thus triggered the presumption under
Code § 18.2-183.
Appellant's contention that the presumption of her intent to
defraud was rebutted by her testimony that the bank employee told
her after she had written the check that the bank was going to
close her account is without merit. Assuming without deciding
that this testimony is sufficient to rebut the statutory
presumption, it was never offered at trial, but only at
5 sentencing. As such, the testimony has no bearing on the issue.
Finally, in addition to its consideration of the
presumptions which arose under Code §§ 18.2-183 and 18.2-184, the
trial court considered and rejected appellant's testimony that
she did not know that the account was closed when she wrote the
check. See Burket v. Commonwealth, 248 Va. 596, 614-15, 450
S.E.2d 124, 134 (1994) ("The trial court, as the finder of fact,
is entitled to weigh the evidence, to observe the demeanor of the
witnesses, and to assess their credibility."). Because the trial
court properly applied the statutory presumptions, and further
properly determined the credibility issue in the case against the
appellant, we find the evidence was sufficient to support
appellant's conviction. Affirmed.