Michael Bell (Shelton Bell) v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: March 12, 2002
• Docket: 0139012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Agee Argued by teleconference

MICHAEL BELL S/K/A MICHAEL SHELDON BELL MEMORANDUM OPINION * BY v. Record No. 0139-01-2 JUDGE JEAN HARRISON CLEMENTS MARCH 12, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge

Wayne R. Morgan, Jr., for appellant.

Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Michael Bell was convicted in a bench trial 1 of five counts

of grand larceny, five counts of uttering, four counts of

forgery, and one count of attempted escape with force from

police custody. On appeal, he contends the evidence was

insufficient to sustain the convictions. We agree and reverse

the convictions.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 With the exception of the entry of the sentencing order entered nunc pro tunc on March 7, 2001, from which this appeal was officially taken, the Honorable James B. Wilkinson presided over the proceedings addressed in this opinion. value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997). We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact[ ]finder's determination." Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). We will

not disturb the conviction unless it is plainly wrong or

unsupported by the evidence. Sutphin v. Commonwealth, 1 Va. App.

241, 243, 337 S.E.2d. 897, 898 (1985).

A. Grand Larceny, Uttering, and Forgery

Before trial, Bell was arraigned on indictments charging

him with fourteen offenses related to the cashing of counterfeit

checks at a Q-Market store in Richmond, as follows:

Date of Case # Offense Offense Code §

00-1770-F Grand Larceny 8/20/00 18.2-95

00-1771-F Uttering (Check for $317.98) 8/20/00 18.2-172 2

2 The indictment in case number 00-1771-F made no reference to Bell. Instead, it read as follows:

- 2 - 00-1772-F Grand Larceny 8/9/00 18.2-95

00-1773-F Grand Larceny 8/9/00 18.2-95

00-1774-F Grand Larceny 8/7/00 18.2-95

00-1775-F Grand Larceny 8/7/00 18.2-95

00-1776-F Forgery (Check for $228.73) 8/7/00 18.2-172

00-1777-F Uttering (Check for $228.73) 8/7/00 18.2-172

00-1778-F Forgery (Check for $458.12) 8/9/00 18.2-172

00-1779-F Uttering (Check for $458.12) 8/9/00 18.2-172

00-1780-F Forgery (Check for $451.12) 8/9/00 18.2-172

00-1781-F Uttering (Check for $451.12) 8/9/00 18.2-172

00-1782-F Forgery (Check for $463.00) 8/7/00 18.2-172

00-1783-F Uttering (Check for $463.00) 8/7/00 18.2-172

Bell pled not guilty to each charge. 3

The GRAND JURY charges that:

On or about August 20, 2000, in the City of Richmond,

MILLARD MAURICE WATKINS

did feloniously and unlawfully utter a counterfeit check #9332, in the amount $317.98, or attempt to employ as true knowing such to be forged.

Nothing in the record indicates that the indictment was amended. Watkins, who, like Bell, was arrested for passing counterfeit checks at the Q-Market store, testified on Bell's behalf at trial and, after being advised of his Fifth Amendment rights, admitted that he, not Bell, was responsible for cashing the counterfeit checks in question. 3 The sentencing order entered in this matter erroneously recited that Bell "pleaded guilty to said charges" and that the trial court "found for a fact that the defendant's pleas of - 3 - Following the Commonwealth's presentation of evidence at

trial, Bell moved to strike the evidence related to these charges,

arguing the Commonwealth failed to prove that he was the one who

cashed the counterfeit checks. He argued that, in the absence of

proof that he cashed the checks, the Commonwealth's evidence

failed to prove the charged offenses related to the counterfeit

checks. The trial court denied the motion and found Bell "guilty,

as charged."

On appeal, Bell renews his argument that the Commonwealth's

evidence was insufficient to prove that he was the person who

cashed the counterfeit checks at the Q-Market store. He argues

that, even though his name was on the counterfeit checks, the

Commonwealth failed to otherwise connect him to any of the

specific checks cashed.

The Commonwealth concedes, on appeal, that the evidence was

insufficient to sustain the uttering conviction in case number

00-1771-F, the grand larceny conviction in case number 00-1773-F,

the forgery conviction in case number 00-1780-F, and the uttering

conviction in case number 00-1781-F. However, as to the remaining

ten convictions concerning the cashing of the counterfeit checks,

the Commonwealth contends its evidence was sufficient to show that

Bell was the one who cashed the subject counterfeit checks.

guilty were made freely, voluntarily and intelligently and were accordingly accepted." - 4 - "In every criminal prosecution the Commonwealth must

establish beyond a reasonable doubt all elements of the offense

and that the accused did commit it." Harward v. Commonwealth, 5

Va. App. 468, 470, 364 S.E.2d 511, 512 (1988). Thus, to sustain

the grand larceny, uttering, and forgery convictions in this case,

the Commonwealth had to prove beyond a reasonable doubt, inter

alia, that Bell was the individual who cashed the subject checks

in the Q-Market store. See Code §§ 18.2-95 and 18.2-172; see also

Jones v. Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417

(1986) (defining "larceny" as "the wrongful or fraudulent taking

of personal goods of some intrinsic value, belonging to another,

without his assent, and with the intention to deprive the owner

thereof permanently"); Walker v. Commonwealth, 25 Va. App. 50, 58,

486 S.E.2d 126, 131 (1997) (defining "uttering," in this context,

as putting "a forged check into circulation"); Fitzgerald v.

Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395 (1984)

(holding that "[p]ossession of a forged check by an accused, which

he claims as a payee, is prima facie evidence that he either

forged the instrument or procured it to be forged").

Here, the Commonwealth introduced into evidence four

counterfeit checks drawn on the account of Care Advantage, Inc.

and made out to "Michael Bell," as follows: (1) dated August 15,

2000, in the amount of $317.98, (2) dated August 7, 2000, in the

amount of $228.73, (3) dated August 9, 2000, in the amount of

$458.12, and (4) dated August 7, 2000, in the amount of $463.00. - 5 - Rateb Al-Ahmad, who, along with his brother, managed the

Q-Market store, identified each of the checks as having been

cashed at the Q-Market store. He testified that he and his

brother, who did not testify, were "in charge of cashing all the

checks." He also testified that he saw Bell in the Q-Market

store two or three times and cashed "at least two checks" for

him. He could not, however, identify which checks he cashed for

Bell or say conclusively that Bell cashed any of the four checks

presented at trial by the Commonwealth. Likewise, he admitted

there was nothing on the checks to show whether he or his

brother had cashed them. He further acknowledged that other

people had cashed similar counterfeit checks in the store during

that same period of time and offered no testimony of any method

used by the store to assure that only the payee listed on the

check could cash it.

Detective Arthur Rucker testified that, when he

investigated the reported passing of counterfeit checks at the

Q-Market store, Al-Ahmad and his brother gave him "a large

number of checks from Care Advantage that were forged."

According to Rucker, Al-Ahmad and his brother then identified

Bell from a photographic lineup as one of the people who "they

said presented the checks." Detective Rucker was unable,

however, to draw any connection between that identification and

the four specific counterfeit checks in evidence. He also

- 6 - admitted that Bell was not the only suspect arrested for cashing

counterfeit checks at the Q-Market store.

Finally, Detective J.P. Foust testified that he interviewed

Bell following his arrest. According to Foust, Bell admitted

that "he did pass some checks at the Q-Market." However, even

were we to assume that this "admission" encompassed the passing

of counterfeit checks at the Q-Market store, Detective Foust

offered no evidence connecting Bell to the specific counterfeit

checks introduced at trial or any other specific checks.

It is well settled in Virginia that, to sustain a

conviction, "the evidence, viewed in the light most favorable to

the Commonwealth, must go further than to create a mere

suspicion or probability of guilt; it must exclude every

reasonable hypothesis except that of guilt." Stamper v.

Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979),

cert. denied, 445 U.S. 972 (1980). Furthermore, circumstantial

evidence is entitled to the same weight as direct evidence only

to the extent that "it is sufficiently convincing." Id.

We conclude, therefore, that, because it presented no

evidence at trial, circumstantial or otherwise, that

convincingly linked Bell to the four specific counterfeit checks

upon which the instant charges were based, the Commonwealth

failed to prove beyond a reasonable doubt that it was Bell who

cashed the subject counterfeit checks. Thus, the Commonwealth's

evidence was insufficient, as a matter of law, to prove beyond a - 7 - reasonable doubt that Bell committed the charged crimes of grand

larceny, uttering, and forgery. Consequently, we hold that the

trial court erred in overruling Bell's motions to strike the

evidence as to those charges.

B. Attempted Escape

Bell was also arraigned before trial, in case number

00-1784-F, on an indictment charging him with attempted escape

with force from police custody. 4 Bell pled not guilty to the

charge. At the conclusion of the Commonwealth's case, Bell

moved to strike the evidence as to the attempted escape with

force charge on the ground that there was no evidence that

Bell's attempted escape was "with force." The trial court

overruled the motion, finding that "[i]t took three officers to

4 The indictment in case number 00-1784-F read, in pertinent part, as follows:

On or about September 13, 2000, in the City of Richmond,

MICHAEL BELL . . .

did feloniously and unlawfully, having been . . . in the custody of . . . a law enforcement officer on a charge . . . of a felony, attempt to escape such . . . custody with force.

However, the indictment, in contradistinction to its express charge that Bell attempted to escape police custody with force, erroneously cited Code § 18.2-479, rather than Code §§ 18.2-478 and 18.2-26, a mistake that was repeated in the sentencing order. - 8 - subdue him." At the conclusion of the evidence, the trial court

found Bell "guilty, as charged."

Bell argues, on appeal, that the Commonwealth failed "to

show one scintilla of evidence" that he used any force in

attempting to escape. The Commonwealth argues that the evidence

in the record "makes clear that Bell struggled with the officers

when they attempted to return him to the patrol wagon after he

had run away."

To prove the crime of attempted escape with force, the

Commonwealth must prove beyond a reasonable doubt, inter alia,

"that by the use of force or violence" the person in police

custody attempted to leave "such custody without lawful

permission." Henry v. Commonwealth, 21 Va. App. 141, 147-48,

462 S.E.2d 578, 581 (1995) (construing Code § 18.2-478). "The

word 'force' means 'power dynamically considered [or] strength

directed to an end.'" Id. at 148, 462 S.E.2d at 581 (alteration

in original) (quoting Black's Law Dictionary 644 (6th ed.

1990)).

Here, the uncontradicted evidence, viewed in the light most

favorable to the Commonwealth, established that Bell was found

hiding in the attic of a residence by the police and placed

under arrest for passing counterfeit checks. He was led to the

front porch of the residence to await the arrival of a patrol

wagon to transport him. When the patrol wagon pulled up, Bell

told the police officer with him that he did not "want to go in - 9 - the back of the wagon." The officer said, "Come on, Michael,

let's go," and took a step towards the wagon. At that point,

Bell "took off running." He ran approximately thirty yards

before three officers caught him and put him "on the ground."

Bell was then escorted to the wagon.

Contrary to the trial court's finding, this evidence fails

to show that Bell attempted to leave police custody by the use

of force or violence. It shows, rather, that Bell attempted to

escape by merely running away from the officer accompanying him

at the time. Any force or violence possibly attributable to

Bell by reasonable inference occurred only when the officers

were putting him on the ground, well after the attempt to escape

was completed.

Thus, we conclude the Commonwealth's evidence does not

support the trial court's finding that Bell's attempted escape

from police custody was "with force." Compare id. at 145-46,

462 S.E.2d at 580 (finding appellant escaped from police custody

with force where appellant struck officer immediately before

fleeing from him). The Commonwealth having failed to prove an

element necessary to sustain a conviction of attempted escape

with force, we hold that the trial court erred in overruling

Bell's motion to strike the evidence as to the attempted escape

with force charge.

- 10 - Accordingly, we reverse Bell's convictions and dismiss the

indictments.

Reversed and dismissed.

- 11 -