COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys Argued at Chesapeake, Virginia
JASON D. MANAS MEMORANDUM OPINION * BY v. Record No. 2789-00-1 JUDGE ROBERT P. FRANK SEPTEMBER 25, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON William C. Andrews, III, Judge
Stephen K. Smith for appellant.
Steven A. Witmer, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.
Jason D. Manas (appellant) was convicted in a bench trial of
two counts of forgery, in violation of Code § 18.2-172, two counts
of uttering, in violation of Code § 18.2-172, and one count of
obtaining money by false pretenses, in violation of Code
§ 18.2-178. On appeal, appellant contends the trial court erred
in finding the evidence sufficient to convict him of one forgery
and one uttering count. 1
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant does not challenge the conviction for obtaining money by false pretenses nor the convictions involving the forging and uttering of William Allen's check. I. BACKGROUND
On February 8, 1999, appellant, who owed Monica Donovan
money, told Donovan that his uncle owed him money. Appellant gave
Donovan check #2632 in the amount of $900, drawn against the joint
checking account of Linda A. Poppie and Matthew M. Poppie at
Virginia Educators Credit Union, Inc. and payable to Donovan.
Matthew Poppie was appellant's uncle.
When appellant gave the check to Donovan, it was already made
out to her and signed with the name "Matthew M. Poppie."
Appellant told Donovan that since he had no bank account nor
any identification, he could not cash a check payable to himself.
Appellant suggested to Donovan that she could cash the check for
him, keep what was owed to her, and give him the difference.
Donovan cashed the $900 check, kept the $400 due her, and gave
appellant $500.
Appellant's activities came to the attention of Linda Poppie
when she noticed money was missing from her checking account. She
subsequently discovered a book of her checks was missing. She
gave no one permission to take any of her checks. Between
February 8 and 9, 1999, appellant had access to the Poppies' home.
Linda Poppie identified check #2632 as a check from her
missing checkbook. She did not make out the check nor did she
give anyone permission to make out the check. The signature on
the check was not that of her husband, Matthew M. Poppie.
- 2 - Previously, on January 8, 1999, appellant had called Sherry
Duncan and asked her to cash a check for him.
Duncan picked up appellant, and they drove to a location
where he clamed he and his grandfather worked. Appellant entered
the building and quickly returned, telling Duncan that he had the
check, "and he said his grandfather had made it to [Duncan] so
[she] could cash it for him because he didn't have any
identification or a banking account." The check was already made
out when appellant gave it to Duncan. Duncan cashed the check and
gave the proceeds to appellant.
On January 8, 1999, William Allen, appellant's grandfather
and Linda Poppie's father, was visiting Linda from his home in
Florida. When he returned to his home a month later, he received
his bank statement and discovered a lot of "high dollar" checks
had been written against his account for a total of $2,800. Upon
investigation, William Allen and his wife discovered that nine
checks had been torn out of the back of their checkbook while they
were in Virginia.
Allen had not given appellant permission to take his checks,
to sign his name, or to use the account. Allen identified the
check that Duncan cashed as one of his checks stolen from Linda
Poppie's house.
At the conclusion of the Commonwealth's case, appellant moved
to strike the evidence on sufficiency grounds. Appellant rested
without putting on any evidence and renewed his motion to strike.
- 3 - The trial court denied both motions and convicted appellant of
each of the five indictments.
II. ANALYSIS
"Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
Furthermore, "[t]he credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citations omitted).
Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10
(2000).
Forgery is "'the false making or materially altering with
intent to defraud, of any writing which, if genuine, might
apparently be of legal efficacy, or the foundation of legal
liability.'" Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313
- 4 - S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va.
558, 561, 138 S.E.2d 261, 263 (1964)). Uttering, a separate and
distinct offense, is defined as "an assertion by word or action
that a writing known to be forged is good and valid." Bateman v.
Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964).
This Court has explained previously the Commonwealth's burden
in such cases:
To sustain a conviction for forgery in violation of Code § 18.2-172, the Commonwealth must prove that the accused falsely made or materially altered a writing, without the authority to do so, and did so to the prejudice of another's right. See Code § 18.2-172; Lewis v. Commonwealth, 213 Va. 156, 157, 191 S.E.2d 232, 233 (1972); Lawson v. Commonwealth, 201 Va. 663, 667, 112 S.E.2d 899, 901 (1960). The trial judge had to determine whether the Commonwealth proved beyond a reasonable doubt that Bowman did not have authority from Ford to sign and present the checks. "Where one signs the name of another to a check it is presumed, in the absence of other evidence, that he has authority to do so.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys Argued at Chesapeake, Virginia
JASON D. MANAS MEMORANDUM OPINION * BY v. Record No. 2789-00-1 JUDGE ROBERT P. FRANK SEPTEMBER 25, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON William C. Andrews, III, Judge
Stephen K. Smith for appellant.
Steven A. Witmer, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.
Jason D. Manas (appellant) was convicted in a bench trial of
two counts of forgery, in violation of Code § 18.2-172, two counts
of uttering, in violation of Code § 18.2-172, and one count of
obtaining money by false pretenses, in violation of Code
§ 18.2-178. On appeal, appellant contends the trial court erred
in finding the evidence sufficient to convict him of one forgery
and one uttering count. 1
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant does not challenge the conviction for obtaining money by false pretenses nor the convictions involving the forging and uttering of William Allen's check. I. BACKGROUND
On February 8, 1999, appellant, who owed Monica Donovan
money, told Donovan that his uncle owed him money. Appellant gave
Donovan check #2632 in the amount of $900, drawn against the joint
checking account of Linda A. Poppie and Matthew M. Poppie at
Virginia Educators Credit Union, Inc. and payable to Donovan.
Matthew Poppie was appellant's uncle.
When appellant gave the check to Donovan, it was already made
out to her and signed with the name "Matthew M. Poppie."
Appellant told Donovan that since he had no bank account nor
any identification, he could not cash a check payable to himself.
Appellant suggested to Donovan that she could cash the check for
him, keep what was owed to her, and give him the difference.
Donovan cashed the $900 check, kept the $400 due her, and gave
appellant $500.
Appellant's activities came to the attention of Linda Poppie
when she noticed money was missing from her checking account. She
subsequently discovered a book of her checks was missing. She
gave no one permission to take any of her checks. Between
February 8 and 9, 1999, appellant had access to the Poppies' home.
Linda Poppie identified check #2632 as a check from her
missing checkbook. She did not make out the check nor did she
give anyone permission to make out the check. The signature on
the check was not that of her husband, Matthew M. Poppie.
- 2 - Previously, on January 8, 1999, appellant had called Sherry
Duncan and asked her to cash a check for him.
Duncan picked up appellant, and they drove to a location
where he clamed he and his grandfather worked. Appellant entered
the building and quickly returned, telling Duncan that he had the
check, "and he said his grandfather had made it to [Duncan] so
[she] could cash it for him because he didn't have any
identification or a banking account." The check was already made
out when appellant gave it to Duncan. Duncan cashed the check and
gave the proceeds to appellant.
On January 8, 1999, William Allen, appellant's grandfather
and Linda Poppie's father, was visiting Linda from his home in
Florida. When he returned to his home a month later, he received
his bank statement and discovered a lot of "high dollar" checks
had been written against his account for a total of $2,800. Upon
investigation, William Allen and his wife discovered that nine
checks had been torn out of the back of their checkbook while they
were in Virginia.
Allen had not given appellant permission to take his checks,
to sign his name, or to use the account. Allen identified the
check that Duncan cashed as one of his checks stolen from Linda
Poppie's house.
At the conclusion of the Commonwealth's case, appellant moved
to strike the evidence on sufficiency grounds. Appellant rested
without putting on any evidence and renewed his motion to strike.
- 3 - The trial court denied both motions and convicted appellant of
each of the five indictments.
II. ANALYSIS
"Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
Furthermore, "[t]he credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citations omitted).
Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10
(2000).
Forgery is "'the false making or materially altering with
intent to defraud, of any writing which, if genuine, might
apparently be of legal efficacy, or the foundation of legal
liability.'" Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313
- 4 - S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va.
558, 561, 138 S.E.2d 261, 263 (1964)). Uttering, a separate and
distinct offense, is defined as "an assertion by word or action
that a writing known to be forged is good and valid." Bateman v.
Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964).
This Court has explained previously the Commonwealth's burden
in such cases:
To sustain a conviction for forgery in violation of Code § 18.2-172, the Commonwealth must prove that the accused falsely made or materially altered a writing, without the authority to do so, and did so to the prejudice of another's right. See Code § 18.2-172; Lewis v. Commonwealth, 213 Va. 156, 157, 191 S.E.2d 232, 233 (1972); Lawson v. Commonwealth, 201 Va. 663, 667, 112 S.E.2d 899, 901 (1960). The trial judge had to determine whether the Commonwealth proved beyond a reasonable doubt that Bowman did not have authority from Ford to sign and present the checks. "Where one signs the name of another to a check it is presumed, in the absence of other evidence, that he has authority to do so. The burden was upon the Commonwealth not only to prove that [Bowman] signed [Ford's] name as maker of the check but the evidence must establish that this was done without authority." Lewis, 213 Va. at 157, 191 S.E.2d at 233.
Bowman v. Commonwealth, 28 Va. App. 204, 213, 503 S.E.2d 241, 245
(1998) (emphasis in original).
Here, the issue is whether the Commonwealth proved beyond a
reasonable doubt that appellant had no authority to sign Matthew
M. Poppie's name to check #2632.
- 5 - Absence of authority may be proven by circumstantial
evidence. "'Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.'" Patrick v. Commonwealth, 27 Va. App. 655,
662, 500 S.E.2d 839, 843 (1998) (quoting Coleman v. Commonwealth,
226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). "Whether an
alternative hypothesis of innocence is reasonable is a question of
fact and, therefore, is binding on appeal unless plainly wrong."
Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832
(1997).
Appellant correctly cites Lewis v. Commonwealth, 213 Va. 156,
191 S.E.2d 232 (1972) (per curiam), for the presumption of
authority to sign a check in the absence of other evidence. But,
Lewis is distinguishable on its facts. The only evidence before
the trial court in Lewis was that "the body and signature on the
check which Lewis attempted to cash were in Lewis' handwriting."
Id. at 156, 191 S.E.2d at 233.
One element of Lewis is the same here: the account holder
did not testify. However, the presumption of authority in this
case was rebutted by other compelling evidence.
Between February 8 and 9, 1999, appellant had access to the
Poppies' residence. William Allen was visiting the Poppies during
that time. During that time, checks belonging to the Poppies and
to William Allen were stolen. Linda Poppie gave no one, which the
- 6 - fact finder could infer included her husband, permission to take
or use any of her checks. On February 8, 1999, appellant was in
possession of checks stolen from Poppie and from Allen. Allen
testified he gave no one permission to sign his name.
Appellant asks this Court to find Matthew Poppie stole the
check from his wife and then gave it to appellant with permission
to sign it. Given the evidence, this "hypothesis of innocence" is
unreasonable. See Shaver v. Commonwealth, 30 Va. App. 789, 801,
520 S.E.2d 393, 399 (1999).
It would defy reality to believe appellant had Matthew
Poppie's authority to sign the stolen check. Linda Poppie
testified she gave no one permission to take any of her checks,
which would include #2632. The trial court reasonably could infer
from that testimony that her husband also did not have permission
to take that check. See Higginbotham, 216 Va. at 352, 218 S.E.2d
at 537; Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832.
In determining whether appellant had Matthew Poppie's
authority, the fact finder also could consider that William Allen
did not authorize appellant to sign his name to his stolen check.
Appellant employed the same scheme for both checks. He told
Monica Donovan and Sherry Duncan that since he had no
identification and no banking account, he had the maker of the
check make the check payable to a third party, not the appellant.
Evidence tending to show an accused is guilty of other crimes
of a similar nature "is incompetent and inadmissible for the
- 7 - purpose of showing the commission of the particular crime
charged." Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970). However, "[e]vidence of 'other crimes' is
relevant and admissible if it tends to prove any element of the
offense charged. Thus, evidence of other crimes is allowed when
it tends to prove motive, intent, or knowledge of the defendant."
Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491
(1998) (citation omitted) (emphasis in original). "In order for
evidence that the accused has committed other crimes to be
admissible, it need only be relevant to prove a material fact or
issue, and its relevance must outweigh the prejudice inherent in
proving that an accused has committed other crimes." Wilson v.
Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 234, aff'd on
reh'g en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993) (citation
omitted).
Here, whether or not appellant had the authority to sign
Matthew Poppie's name is an element of the offense. Code
§ 18.2-172. See also Bowman, 28 Va. App. at 213, 503 S.E.2d at
245. Evidence that an accused used a similar scheme to commit a
crime previously is permissible proof of a defendant's knowledge
that he was acting without authority. Wilson, 16 Va. App. at 220,
429 S.E.2d at 234.
Given the parallels between appellant's actions regarding
Allen's check and Poppie's check, the evidence that Allen did not
give appellant permission to sign the stolen check is additional
- 8 - relevant evidence of guilt in the forgery and uttering of Poppie's
check. Clearly, the Commonwealth excluded any reasonable
hypothesis of innocence.
Finding the evidence sufficient to convict, we affirm the
judgment of the trial court.
Affirmed.
- 9 -