COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia
PATRICIA A. HUTCHINGS, SOMETIMES KNOWN AS PATRICIA ANN HUTCHINGS MEMORANDUM OPINION * BY v. Record No. 2066-98-3 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 9, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
Greg T. Haymore (Brian H. Turpin, P.C., on brief), for appellant.
(Mark L. Earley, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Patricia Ann Hutchings was convicted during a bench trial
of uttering a forged check and petit larceny in violation of
Code §§ 18.2-172 and 18.2-96. The trial court dismissed a
companion charge of forgery. The issue on appeal is whether the
evidence is sufficient to prove that the defendant knowingly
presented a forged check. Finding the evidence sufficient, we
affirm her conviction.
The defendant presented the owner of G & S Market, Alice
Bolling, a check for $50 in exchange for merchandise and cash.
Bolling knew the defendant and had cashed checks for her in the
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. past. The check, which Bolling said looked like a real check,
was signed by D.M. McVaughan, typed payable to the defendant,
and endorsed by her in the store. Bolling's bank did not honor
the check because it did not have a bank routing number or an
account number.
Bolling left three telephone messages for the defendant and
sent her a letter demanding payment when she did not return the
calls. The defendant wrote Bolling that she would pick the
check up, but she never did.
The check purported to be drawn on an account with First
Federal Savings Bank in Lynchburg. The vice president and
branch manager of the successor bank testified that the check
was not a proper one. It did not have a routing number and did
not have a proper account number. The supposed account number
designated a savings account that was closed and appeared
incorrectly at the top right corner. Two different account
numbers appeared on the check, and it lacked a federal reserve
tracking code. The bank officer could not say when the savings
account was closed, but said that he would classify the check as
a counterfeit.
Sergeant Daniel Dennis investigated the store's complaint
and spoke with the defendant. She told him that she received
the check for work she had done but refused to identify the
person who gave her the check. She said she did not want to get
them into trouble. When asked if she had any more of these
- 2 - checks, the defendant said, "I don't think any more of these
checks is out." The defendant denied knowing anyone named D.M.
McVaughan. The defendant paid the check and related fees before
the warrant was served.
At trial, the defendant testified that her cousin, Crystal
Green, had given her the check. Green lives in New Jersey and
stayed with the defendant for a few weeks, but had "disappeared
again." The defendant testified she did not know that the check
was drawn on a nonexistent account or that it was counterfeit.
She admitted signing and endorsing the check in the store, but
denied telling the investigator that she received it for work
she had done.
In her brief, the defendant argues that she cannot be
convicted of uttering a forged instrument because the trial
court did not find that the check was forged. The trial court
ruled that the evidence was insufficient to prove that she
forged the check. The trial court dismissed the forgery charge
because the defendant had not committed forgery by signing her
name to endorse the check. It did not dismiss the charge
because the Commonwealth failed to prove the writing was a
forgery.
The defendant argues the evidence is insufficient to prove
that she had the requisite intent to commit larceny. Because
this issue was not presented to the trial court, we will not
consider it for the first time on appeal. See Rule 5A:18.
- 3 - The crimes of forgery and uttering are separate and
distinct offenses. 1 See Bateman v. Commonwealth, 205 Va. 595,
599, 139 S.E.2d 102, 105 (1964). Uttering "is an assertion by
word or action that a writing known to be forged is good and
valid." Id. at 600, 139 S.E.2d at 106. In order to prove
uttering the Commonwealth must establish that at the time the
check was tendered for payment, the defendant knew it to be
forged. Possession of a forged check permits the inference that
the defendant knew it was forged. See Denis v. Commonwealth,
144 Va. 559, 590-92, 131 S.E. 131, 140-41 (1926) (trial court
properly refused instruction which stated that defendant's
possession of forged instrument does not raise presumption that
he forged it); Walker v. Commonwealth, 25 Va. App. 50, 59, 486
S.E.2d 126, 131 (1997).
When drawing reasonable inferences from the facts, the fact
finder "was entitled to weigh the defendant's contradictory
statements," Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d
210, 213 (1949), and to infer that she was attempting to conceal
her guilt. See Black v. Commonwealth, 222 Va. 838, 842, 284
S.E.2d 608, 610 (1981). This rule is consistent with the
appellate court's duty to "discard the evidence of the accused
1 Code § 18.2-172 provides, in part, that "[i]f any person forge any writing . . . to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony."
- 4 - in conflict with that of the Commonwealth, and to regard as true
all the credible evidence favorable to the Commonwealth and all
favorable inferences to be drawn therefrom." Parks v.
Commonwealth, 221 Va. 492, 497, 270 S.E.2d 755, 759 (1980)
(emphasis in original). See LaPrade v. Commonwealth, 191 Va.
410, 418, 61 S.E.2d 313, 316 (1950). The trial court's ruling
will not be disturbed on appeal unless plainly wrong or
unsupported by the evidence. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed in the light most favorable to the Commonwealth, the
evidence established that the defendant possessed a check with
two different account numbers on it, purportedly drawn on a
Lynchburg bank, typed payable to her, and signed by D.M.
McVaughan, whom she did not know. The check, an exhibit
available to the fact finder, looked spurious: all characters
were in the same plain font with the bank name and address in
boldface, account numbers were incorrectly placed, and a full
row of "x"s appeared across the bottom of the check. The
defendant tendered the check in a store where she was known and
had cashed checks previously. She informed the investigator
that she received the check for work she had done, but would not
name the person who gave it to her. She stated that there were
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia
PATRICIA A. HUTCHINGS, SOMETIMES KNOWN AS PATRICIA ANN HUTCHINGS MEMORANDUM OPINION * BY v. Record No. 2066-98-3 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 9, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
Greg T. Haymore (Brian H. Turpin, P.C., on brief), for appellant.
(Mark L. Earley, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Patricia Ann Hutchings was convicted during a bench trial
of uttering a forged check and petit larceny in violation of
Code §§ 18.2-172 and 18.2-96. The trial court dismissed a
companion charge of forgery. The issue on appeal is whether the
evidence is sufficient to prove that the defendant knowingly
presented a forged check. Finding the evidence sufficient, we
affirm her conviction.
The defendant presented the owner of G & S Market, Alice
Bolling, a check for $50 in exchange for merchandise and cash.
Bolling knew the defendant and had cashed checks for her in the
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. past. The check, which Bolling said looked like a real check,
was signed by D.M. McVaughan, typed payable to the defendant,
and endorsed by her in the store. Bolling's bank did not honor
the check because it did not have a bank routing number or an
account number.
Bolling left three telephone messages for the defendant and
sent her a letter demanding payment when she did not return the
calls. The defendant wrote Bolling that she would pick the
check up, but she never did.
The check purported to be drawn on an account with First
Federal Savings Bank in Lynchburg. The vice president and
branch manager of the successor bank testified that the check
was not a proper one. It did not have a routing number and did
not have a proper account number. The supposed account number
designated a savings account that was closed and appeared
incorrectly at the top right corner. Two different account
numbers appeared on the check, and it lacked a federal reserve
tracking code. The bank officer could not say when the savings
account was closed, but said that he would classify the check as
a counterfeit.
Sergeant Daniel Dennis investigated the store's complaint
and spoke with the defendant. She told him that she received
the check for work she had done but refused to identify the
person who gave her the check. She said she did not want to get
them into trouble. When asked if she had any more of these
- 2 - checks, the defendant said, "I don't think any more of these
checks is out." The defendant denied knowing anyone named D.M.
McVaughan. The defendant paid the check and related fees before
the warrant was served.
At trial, the defendant testified that her cousin, Crystal
Green, had given her the check. Green lives in New Jersey and
stayed with the defendant for a few weeks, but had "disappeared
again." The defendant testified she did not know that the check
was drawn on a nonexistent account or that it was counterfeit.
She admitted signing and endorsing the check in the store, but
denied telling the investigator that she received it for work
she had done.
In her brief, the defendant argues that she cannot be
convicted of uttering a forged instrument because the trial
court did not find that the check was forged. The trial court
ruled that the evidence was insufficient to prove that she
forged the check. The trial court dismissed the forgery charge
because the defendant had not committed forgery by signing her
name to endorse the check. It did not dismiss the charge
because the Commonwealth failed to prove the writing was a
forgery.
The defendant argues the evidence is insufficient to prove
that she had the requisite intent to commit larceny. Because
this issue was not presented to the trial court, we will not
consider it for the first time on appeal. See Rule 5A:18.
- 3 - The crimes of forgery and uttering are separate and
distinct offenses. 1 See Bateman v. Commonwealth, 205 Va. 595,
599, 139 S.E.2d 102, 105 (1964). Uttering "is an assertion by
word or action that a writing known to be forged is good and
valid." Id. at 600, 139 S.E.2d at 106. In order to prove
uttering the Commonwealth must establish that at the time the
check was tendered for payment, the defendant knew it to be
forged. Possession of a forged check permits the inference that
the defendant knew it was forged. See Denis v. Commonwealth,
144 Va. 559, 590-92, 131 S.E. 131, 140-41 (1926) (trial court
properly refused instruction which stated that defendant's
possession of forged instrument does not raise presumption that
he forged it); Walker v. Commonwealth, 25 Va. App. 50, 59, 486
S.E.2d 126, 131 (1997).
When drawing reasonable inferences from the facts, the fact
finder "was entitled to weigh the defendant's contradictory
statements," Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d
210, 213 (1949), and to infer that she was attempting to conceal
her guilt. See Black v. Commonwealth, 222 Va. 838, 842, 284
S.E.2d 608, 610 (1981). This rule is consistent with the
appellate court's duty to "discard the evidence of the accused
1 Code § 18.2-172 provides, in part, that "[i]f any person forge any writing . . . to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony."
- 4 - in conflict with that of the Commonwealth, and to regard as true
all the credible evidence favorable to the Commonwealth and all
favorable inferences to be drawn therefrom." Parks v.
Commonwealth, 221 Va. 492, 497, 270 S.E.2d 755, 759 (1980)
(emphasis in original). See LaPrade v. Commonwealth, 191 Va.
410, 418, 61 S.E.2d 313, 316 (1950). The trial court's ruling
will not be disturbed on appeal unless plainly wrong or
unsupported by the evidence. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed in the light most favorable to the Commonwealth, the
evidence established that the defendant possessed a check with
two different account numbers on it, purportedly drawn on a
Lynchburg bank, typed payable to her, and signed by D.M.
McVaughan, whom she did not know. The check, an exhibit
available to the fact finder, looked spurious: all characters
were in the same plain font with the bank name and address in
boldface, account numbers were incorrectly placed, and a full
row of "x"s appeared across the bottom of the check. The
defendant tendered the check in a store where she was known and
had cashed checks previously. She informed the investigator
that she received the check for work she had done, but would not
name the person who gave it to her. She stated that there were
no other checks like this one. When asked to explain that
statement, the defendant responded, "[t]hat was just an
- 5 - expression. I mean, I don't know. . . . I mean I didn't have
another check."
At trial, the defendant testified that she got the check
from her cousin. Despite the fact that the cousin resided in
New Jersey, the defendant did not question the cousin's
possession of a check drawn on a Lynchburg account typed payable
to the defendant. She denied telling the investigator that she
received the check in payment for work performed.
The bank officer testified the check was counterfeit.
Though the defendant argues the testimony was a lay opinion, she
made no objection at trial. We will not consider it now. See
Rule 5A:18. The bank officer's testimony was not the only
evidence that the check was counterfeit. It looked like a fake,
and the trial court could see that for itself.
Considering all the evidence, we find it sufficient to
prove that the defendant knew the check was forged.
Accordingly, we affirm her conviction for uttering.
Affirmed.
- 6 - Benton, J., concurring.
Based upon her negotiation of a purported negotiable
instrument, see Code § 8.3A-104, Patricia Ann Hutchings was
indicted on charges of forgery, see Code § 18.2-172, uttering,
see id., and grand larceny, see Code § 18.2-96. I agree with
the majority that the trial judge's finding that Hutchings was
not guilty of forgery did not dispose of the uttering charge.
The charges of uttering and forgery are separate and distinct.
See Code § 18.2-172. Thus, "one [may] be found guilty of
forgery and of uttering the forged check." Bateman v.
Commonwealth, 205 Va. 595, 599-600, 139 S.E.2d 102, 105-06
(1964). The trial judge found that Hutchings negotiated a check
knowing it was forged but that she did not forge the check.
The evidence proved that the check Hutchings negotiated at
the store was "returned unpaid" because the check did not
contain the federal reserve bank "routing number" and "[did not]
have the proper account number on it." The Vice President of
First Federal Savings Bank, the payor bank that is now known as
One Valley Bank, testified that "[t]here was a statement savings
account with that number on it." When asked whether that
account was closed, he responded, "I'm not sure about the
closure of it."
This evidence does not prove the check was forged. It only
proves that the check was drawn on a First Federal Savings Bank
account, which was closed at an undisclosed time, and that the
- 7 - check lacked the routing numbers that would identify the bank
using the usual Federal Reserve Bank numerical designations. I
believe, however, that other evidence tends to prove Hutchings
negotiated the check knowing it was a forgery.
During the investigation, Hutchings told the police officer
that "she got the check for some work she had done." She
refused to disclose the name of the person who gave her the
check because "she didn't want to get them in trouble." At
trial, Hutchings testified that the check was not hers. She
testified that she received the check from her cousin, Crystal
Green, who lived in New Jersey and was staying with Hutchings
for a few weeks. Hutchings negotiated the check "because [she
was] . . . trying to help [her cousin]." She also testified
that she did not know D.M. McVaughan, the purported maker of the
check. Further, she denied having told the police officer that
she received the check for work she had performed.
This evidence was sufficient for the trier of fact to find
that Hutchings knew the check was a forgery. Although the check
was payable to her, she said it was not her check. Furthermore,
the check was drawn on the Lynchburg bank account of a person
she did not know, and it was given to her by a cousin for no
apparent reason. See Fitzgerald v. Commonwealth, 227 Va. 171,
174, 313 S.E.2d 394, 395 (1984) (noting that the circumstances
may prove knowledge of forgery). The act of putting the check
into circulation knowing it was forged "constituted an uttering
- 8 - . . . within the prohibition of [the] Code." Moore v.
Commonwealth, 207 Va. 838, 842, 153 S.E.2d 231, 234 (1967).
Accordingly, I concur in affirming the conviction.
- 9 -