COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
PATRICK MARCEL PATTERSON MEMORANDUM OPINION * BY v. Record No. 1236-99-2 JUDGE RICHARD S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
Joseph W. Kaestner (Kaestner, Pitney & Jones, P.C., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Patrick Marcel Patterson (defendant) appeals convictions in a
bench trial for grand larceny, forgery and uttering. He
challenges the sufficiency of an accomplice's testimony to support
the convictions. Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In reviewing the sufficiency of the evidence, we consider
the record "'in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. giving it all reasonable inferences fairly deducible therefrom.
In so doing, we must discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth . . . .'"
Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856,
866 (1998) (citation omitted). The credibility of the
witnesses, the weight accorded testimony, and the inferences to
be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). The judgment of the trial court will
not be set aside unless plainly wrong or unsupported by the
evidence. See Code § 8.01-680.
In October 1997, defendant was employed as a "senior
accountant" in the "student accounts office" (office) of
Virginia State University. Routinely, the office directed
correspondence to "all students who . . . have money that is
owed to them from the University that have been on [the] records
for one year or more without activity." The student is
requested to complete an appended inquiry, which provides the
University with instructions for disposition of the funds on
deposit, a current address and other data.
On October 23, 1997, the University received a response
from Deboria Waytes, 1 a former student, whose correspondence from
1 Deboria Waytes did not testify.
- 2 - the University had been previously mailed to a Washington, D.C.
address. The completed inquiry requested that monies on deposit
to her credit be withdrawn and forwarded to an address in
Midlothian, Virginia, a former residence of defendant that he
vacated in May 1997. Accordingly, a "Check Request" form, dated
October 22, 1997, was generated by the office, which instructed
the University to "refund [an] overpayment of account" to Waytes
in the sum of $2,561.94. Alfred Washington, then the "bursar of
student accounts," and another employee, Paulette Anderson
Moore, identified defendant's signature at the line designated,
"Requested by" on the "Check Request." A handwritten notation,
"Hold for Pickup," appeared on the face of the document. The
University then issued a check, dated October 23, 1997, for
$2,561.94, payable to Waytes, and retained the instrument in the
bursar's office.
Kimberly Cherry, defendant's student assistant, testified
that defendant approached her in October 1997, promoting "a full
[sic] proof plan to make a little extra money." Defendant
suggested that he "generate . . . checks," which Cherry would
"cash," and then "split the funds in half" with him. Cherry
agreed and, in "late October of 1997," defendant telephoned,
advised that he had "the check," and arranged to meet her "at
the close of office." Defendant and Cherry "waited for
everybody to leave," entered Washington's office and "got the
[Waytes] check." Cherry recalled that defendant "signed Deboria
- 3 - Waytes' name to it" and the two proceeded to a nearby "ATM" and
deposited the check into Cherry's bank account. Once the item
had "cleared," Cherry notified defendant and, as requested,
delivered "his half." Moore testified that the endorsement of
Waytes' name to the check "appear[s] to be similar to the
handwriting of defendant."
On July 13, 1998, Cherry was arrested for the instant
offenses and, in the presence of University Police Sergeant
Robert H. Carmichael, III, telephoned defendant, advised that
she had been "caught in the check embezzlement," and threatened
"to turn him in," "if he wouldn't help [her] out." Defendant
was unwilling to "talk . . . about it over the phone," but
agreed to meet Cherry at a local restaurant at 6:00 p.m. that
evening. Carmichael monitored the conversation "on and off,"
drove to the designated restaurant at the "set time" and
observed defendant "at that location."
Defendant argues on brief that the trial court erroneously
relied upon Cherry's contradicted and uncorroborated testimony to
support the convictions. 2
2 The Commonwealth contends that defendant procedurally defaulted a challenge to the sufficiency of the evidence to prove an unauthorized endorsement. However, in the "Petition for Appeal," defendant identified the "Question Presented" as, "Whether the Uncorroborated Testimony of an Accomplice is Sufficient to Support a Conviction of a Crime Under the Facts of This Case." Under such circumstances, we will consider the argument on the merits.
- 4 - II.
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
S.E.2d 394, 395 (1984) (citation omitted). Uttering, a separate
and distinct offense, is comprised of "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). Grand larceny is "the wrongful or fraudulent taking of
personal goods [valued at $200 or more], belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently." Jones v. Commonwealth, 3 Va. App. 295, 300,
349 S.E.2d 414, 417-18 (1986); see also Code § 18.2-95.
Defendant concedes that "the uncorroborated testimony of an
accomplice is sufficient without more to convict a person accused
of a crime." Brown v. Commonwealth, 8 Va. App. 474, 477, 382
S.E.2d 296, 298 (1989); see also Allard v. Commonwealth, 24 Va.
App. 57, 63, 480 S.E.2d 139, 142 (1997). In such instances,
credibility becomes the issue, and this Court will not disturb the
findings of the trial court unless the "testimony was 'inherently
incredible, or so contrary to human experience as to render it
unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App. 854,
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
PATRICK MARCEL PATTERSON MEMORANDUM OPINION * BY v. Record No. 1236-99-2 JUDGE RICHARD S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
Joseph W. Kaestner (Kaestner, Pitney & Jones, P.C., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Patrick Marcel Patterson (defendant) appeals convictions in a
bench trial for grand larceny, forgery and uttering. He
challenges the sufficiency of an accomplice's testimony to support
the convictions. Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In reviewing the sufficiency of the evidence, we consider
the record "'in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. giving it all reasonable inferences fairly deducible therefrom.
In so doing, we must discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth . . . .'"
Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856,
866 (1998) (citation omitted). The credibility of the
witnesses, the weight accorded testimony, and the inferences to
be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). The judgment of the trial court will
not be set aside unless plainly wrong or unsupported by the
evidence. See Code § 8.01-680.
In October 1997, defendant was employed as a "senior
accountant" in the "student accounts office" (office) of
Virginia State University. Routinely, the office directed
correspondence to "all students who . . . have money that is
owed to them from the University that have been on [the] records
for one year or more without activity." The student is
requested to complete an appended inquiry, which provides the
University with instructions for disposition of the funds on
deposit, a current address and other data.
On October 23, 1997, the University received a response
from Deboria Waytes, 1 a former student, whose correspondence from
1 Deboria Waytes did not testify.
- 2 - the University had been previously mailed to a Washington, D.C.
address. The completed inquiry requested that monies on deposit
to her credit be withdrawn and forwarded to an address in
Midlothian, Virginia, a former residence of defendant that he
vacated in May 1997. Accordingly, a "Check Request" form, dated
October 22, 1997, was generated by the office, which instructed
the University to "refund [an] overpayment of account" to Waytes
in the sum of $2,561.94. Alfred Washington, then the "bursar of
student accounts," and another employee, Paulette Anderson
Moore, identified defendant's signature at the line designated,
"Requested by" on the "Check Request." A handwritten notation,
"Hold for Pickup," appeared on the face of the document. The
University then issued a check, dated October 23, 1997, for
$2,561.94, payable to Waytes, and retained the instrument in the
bursar's office.
Kimberly Cherry, defendant's student assistant, testified
that defendant approached her in October 1997, promoting "a full
[sic] proof plan to make a little extra money." Defendant
suggested that he "generate . . . checks," which Cherry would
"cash," and then "split the funds in half" with him. Cherry
agreed and, in "late October of 1997," defendant telephoned,
advised that he had "the check," and arranged to meet her "at
the close of office." Defendant and Cherry "waited for
everybody to leave," entered Washington's office and "got the
[Waytes] check." Cherry recalled that defendant "signed Deboria
- 3 - Waytes' name to it" and the two proceeded to a nearby "ATM" and
deposited the check into Cherry's bank account. Once the item
had "cleared," Cherry notified defendant and, as requested,
delivered "his half." Moore testified that the endorsement of
Waytes' name to the check "appear[s] to be similar to the
handwriting of defendant."
On July 13, 1998, Cherry was arrested for the instant
offenses and, in the presence of University Police Sergeant
Robert H. Carmichael, III, telephoned defendant, advised that
she had been "caught in the check embezzlement," and threatened
"to turn him in," "if he wouldn't help [her] out." Defendant
was unwilling to "talk . . . about it over the phone," but
agreed to meet Cherry at a local restaurant at 6:00 p.m. that
evening. Carmichael monitored the conversation "on and off,"
drove to the designated restaurant at the "set time" and
observed defendant "at that location."
Defendant argues on brief that the trial court erroneously
relied upon Cherry's contradicted and uncorroborated testimony to
support the convictions. 2
2 The Commonwealth contends that defendant procedurally defaulted a challenge to the sufficiency of the evidence to prove an unauthorized endorsement. However, in the "Petition for Appeal," defendant identified the "Question Presented" as, "Whether the Uncorroborated Testimony of an Accomplice is Sufficient to Support a Conviction of a Crime Under the Facts of This Case." Under such circumstances, we will consider the argument on the merits.
- 4 - II.
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
S.E.2d 394, 395 (1984) (citation omitted). Uttering, a separate
and distinct offense, is comprised of "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). Grand larceny is "the wrongful or fraudulent taking of
personal goods [valued at $200 or more], belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently." Jones v. Commonwealth, 3 Va. App. 295, 300,
349 S.E.2d 414, 417-18 (1986); see also Code § 18.2-95.
Defendant concedes that "the uncorroborated testimony of an
accomplice is sufficient without more to convict a person accused
of a crime." Brown v. Commonwealth, 8 Va. App. 474, 477, 382
S.E.2d 296, 298 (1989); see also Allard v. Commonwealth, 24 Va.
App. 57, 63, 480 S.E.2d 139, 142 (1997). In such instances,
credibility becomes the issue, and this Court will not disturb the
findings of the trial court unless the "testimony was 'inherently
incredible, or so contrary to human experience as to render it
unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App. 854,
858, 406 S.E.2d 417, 419 (1991) (citation omitted). On the
- 5 - instant record, we find Cherry's testimony neither incredible nor
uncorroborated. 3
Cherry testified, in detail, to the criminal enterprise
conceived by defendant and executed jointly with her. Her
evidence clearly establishes that, together, the two perpetrated
forgery, uttering and grand larceny. Corroborating Cherry's
evidence, Waytes' current address on her purported response to the
University inquiry was a previous address of defendant, the "Check
Request" emanating from defendant's office was dated prior to
receipt of the response by the University, and defendant's
handwriting appeared on both the "Check Request" and endorsement
of the related check. Finally, defendant reported to the
restaurant following the telephone conversation with Cherry,
behavior which inferred involvement with her in the unlawful
conduct that prompted the meeting.
We recognize that "[w]here 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." Lewis v. Commonwealth, 213 Va. 156, 157,
191 S.E.2d 232, 233 (1972). However, an absence of authority may
be proven by circumstantial evidence which "is as competent and is
entitled to as much weight as direct evidence, provided it is
3 "To corroborate an accomplice's testimony, independent evidence must relate 'to some fact which goes to establish the guilt of the accused' or 'tends to connect' the accused with the crime." Brown, 8 Va. App. at 478, 382 S.E.2d at 298 (citation omitted).
- 6 - sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,
307 S.E.2d 864, 876 (1983).
Here, although Waytes did not testify that defendant signed
her name without authority, the evidence otherwise proved this
element of the alleged forgery. Defendant and Cherry collaborated
in a "[fool]-proof plan" to unlawfully subvert University
procedures through the repeated use of Waytes' name, clearly
without authorization, thereby facilitating theft of the subject
funds.
Accordingly, we find the evidence sufficient to support the
convictions and affirm the trial court.
Affirmed.
- 7 -