Stephen Harold Schrieberg v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: February 29, 2000
• Docket: 1192982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Bray Argued at Chesapeake, Virginia

STEPHEN HAROLD SCHRIEBERG MEMORANDUM OPINION * BY v. Record No. 1192-98-2 JUDGE LARRY G. ELDER FEBRUARY 29, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Arthur W. Sinclair, Judge Designate

Leslie Lee Robinson (Robinson & Pincus, LLP, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Stephen Schrieberg (appellant) was convicted in a bench

trial for the felony offense of uttering a bad check pursuant to

Code § 18.2-181, which offense arose out of his purchase of an

automobile. On appeal, he contends that the trial court

erroneously admitted into evidence both the hearsay statement

made by a bank employee to the automobile's salesman regarding

the status of appellant's checking account and appellant's

response to the salesman when told of the bank employee's

statement. Appellant also contends the evidence is insufficient

to prove that he had the requisite intent to defraud and

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. knowledge of insufficient funds at the time he wrote the check.

We hold the trial court committed no error in admitting the bank

employee's hearsay statement and appellant's response because

the hearsay statement itself was not separately admitted to

prove the truth of the matter asserted; the statement properly

was admitted in conjunction with appellant's response to it

because it constituted an adoptive admission. Finally, the only

reasonable hypothesis flowing from the circumstantial evidence,

viewed in the light most favorable to the Commonwealth, is that

appellant lied to the automobile salesman when he said he had

sufficient funds in his account to cover the $14,700 check and,

therefore, that he acted with the requisite knowledge and intent

when he wrote the check. For these reasons, we affirm

appellant's conviction.

I.

FACTS

On Saturday, May 25, 1996, appellant purchased a used

Mercedes from Pegasus Motor Car Company through General Manager

Mark Viglione. Appellant traded in his older model Mercedes and

wrote a check for the balance due--$14,700. The check was a

corporate check of Bingo TV, Inc., of Boca Raton, Florida, and

was drawn on a Florida bank. Appellant assured Viglione that

"there [were] funds in the account and that it was a good

check." In the course of the purchase, appellant gave an

address in Richmond as his home address.

- 2 - On Monday, May 27, Viglione delivered the check to Pegasus'

business office, and on June 3, Viglione received the check back

again. Viglione called appellant at the business number listed

on the check, and when appellant returned the call, he told

Viglione "that he had deposited a rather large check into that

account and it hadn't cleared yet, so it was going to be a few

days yet" before his account would contain sufficient funds to

cover the check. For about two or three weeks thereafter,

Viglione phoned the bank on a daily basis to determine whether

the account contained sufficient funds and, upon learning that

it did not, Viglione called appellant. On each of those

occasions, appellant provided the same explanation for why the

account still contained insufficient funds. Eventually, the

business phone number Viglione had been calling was

disconnected, and Viglione attempted to make contact with

appellant through appellant's father.

Viglione eventually talked with a bank employee about the

status of appellant's account and communicated to appellant what

he had been told. Viglione testified in relevant part as

follows:

[PROSECUTOR]: Okay. So you confronted [appellant] and what specific question did you ask about this large check deposit that you believed now to be nonexistent, what did you ask--

[VIGLIONE]: I said that I had talked to somebody at his bank and they told me there wasn't a check--

- 3 - * * * * * * *

[VIGLIONE]: I told him that I had talked to his bank and they told me that there in fact wasn't a check deposited there that was going to clear, that the . . . the funds weren't there. He at that point told me that he was making other arrangements.

Viglione confirmed that appellant never refuted the allegations.

Appellant told Viglione that he was in California at that

time but that he would be back in Richmond in about a week.

About a week later, appellant called Viglione and reported that

he was still in California but would wire Viglione the money.

Appellant did not wire the money. In late August 1996, almost

three months after appellant took possession of the car,

appellant's father paid Viglione the outstanding balance.

Appellant testified at trial, claiming that three to seven

days before he wrote the check for the car, he had deposited

into his business account a check for $50,000 drawn on a New

Jersey account. He was unable to produce a deposit slip or

account statement documenting that deposit. He said he had no

knowledge when he wrote the check to Pegasus that the balance in

his business account was not $50,000 and that he "was sure" the

account contained sufficient funds because he expected the check

to clear by that date, but he also admitted that, at the time he

made the deposit, he "thought it would take . . . three to five

days" for the check to clear. He contended that after Viglione

informed him that the account contained insufficient funds, he

- 4 - attempted to investigate and learned that an employee of his

corporation had taken funds out of the account. He also said he

had no recollection of Viglione's telling him a bank employee

said that deposit was never made.

At the conclusion of the evidence, the trial court held

"the credible evidence support[ed] the Commonwealth’s position"

and convicted appellant of the charged offense.

II.

ANALYSIS

A.

ADMISSIBILITY OF EVIDENCE

Appellant contends the trial court erroneously admitted as

an adoptive admission the hearsay statements of a bank official

that appellant had not deposited a check into his account and

appellant's response when told of that statement. We disagree.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).

A statement qualifies as an adoptive admission and may be

admissible into evidence despite the hearsay rule, under certain

well-defined circumstances, if the statement has been adopted,

either expressly or impliedly, by a criminal defendant. See 2

Charles E. Friend, The Law of Evidence in Virginia § 18-45 (4th

- 5 - ed. 1993 & Supp. 1998). "[B]oth the statement and the fact of

the accused's failure to deny the statement are admissible in a

criminal proceeding against the accused." Strohecker v.

Commonwealth, 23 Va. App. 242, 252, 475 S.E.2d 844, 849 (1996).

"'An adoptive admission avoids the confrontation problem because

the words of the hearsay become the words of the defendant.'"

Id. at 253, 475 S.E.2d at 850 (quoting 29A Am. Jur. 2d Evidence

§ 802 (1994)).

In determining whether a statement constitutes an adoptive

admission,

the courts have evolved a variety of safeguarding requirements against misuse, of which the following are illustrative. (1) The statement must have been heard by the party claimed to have acquiesced. (2) It must have been understood by him. (3) The subject matter must have been within his knowledge. (4) Physical or emotional impediment to responding must not be present. (5) The personal makeup of the speaker, e.g., young child, or his relationship to the party or the event, e.g., bystander, may be such as to make it reasonable to expect denial. (6) Probably most important of all, the statement itself must be such as would, if untrue, call for a denial under the circumstances. . . . The essential inquiry in each case is whether a reasonable person would have denied under the circumstances, with answers not lending themselves readily to mechanical formulations.

Edward W. Cleary, McCormick on Evidence § 270, at 800-01 (3d ed.

1984), quoted with approval in Knick v. Commonwealth, 15 Va.

App. 103, 107, 421 S.E.2d 479, 481 (1992).

- 6 - Here, the evidence supports a finding that all the

requirements for an adoptive admission were met, and we hold the

trial court did not abuse its discretion in admitting the bank

employee's statement and appellant's response. First, the

evidence establishes that appellant heard the statement of the

bank employee, as reported to him by Viglione, that "there

wasn't a check." Second, it establishes that appellant

understood the statement because he responded to it by saying he

would make other arrangements to complete payment. Third, the

subject matter was plainly within his knowledge because he and

Viglione were discussing the status of a check appellant claimed

personally to have deposited in his corporate bank account.

Fourth, the record contains no indication that appellant had any

physical or emotional impediment to responding to the statement.

Fifth, the record also contains no indication that appellant's

personal makeup was such as to make it unreasonable to expect a

denial; at the time of the purchase, appellant was an adult in

his early fifties, operated his own company, and had twenty-five

to thirty years of business experience. Finally, the statement

was of the type that would, if untrue, call for a denial because

it accused appellant of lying repeatedly to Viglione by telling

Viglione he had deposited a large check which would soon clear

- 7 - his account, and it implicated appellant in the crime for which

he was convicted. 1

For these reasons, we hold the trial court did not abuse

its discretion in admitting into evidence as an adoptive

admission the bank employee's statement regarding the status of

appellant's account and appellant's failure to deny that

statement.

B.

SUFFICIENCY OF EVIDENCE TO PROVE INTENT AND KNOWLEDGE

Code § 18.2-181 provides in relevant part as follows:

Any person who, with intent to defraud, shall make or draw or utter or deliver any check . . . upon any bank . . . knowing, at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with, such bank . . . for the payment of such check, . . . although no express representation is made in reference thereto, shall be guilty of larceny; and, if this check . . . has a represented value of $200 or more, such person shall be guilty of a Class 6 felony.

This statute requires the Commonwealth to prove both intent to

defraud and knowledge of insufficient funds in order to convict

1 Citing Owens v. Commonwealth, 186 Va. 689, 43 S.E.2d 895 (1947), appellant claims that the rule requires the statement to be one "tending to incriminate [the] one accused of committing a crime." He contends the statement at issue here was insufficient to meet this test. Assuming without deciding the rule requires the statement to implicate one in a crime, the statement appellant failed to refute did, in fact, implicate him in the crime for which he was convicted.

- 8 - a defendant. 2 See Huntt v. Commonwealth, 212 Va. 737, 739-40,

187 S.E.2d 183, 185-86 (1972). The intent dispositive of the

crime is the intent that existed when the check was uttered.

However, subsequent acts of the accused are relevant to

establish the intent of the accused at the time the check was

uttered. See Rosser v. Commonwealth, 192 Va. 813, 817, 66

S.E.2d 851, 853 (1951).

Knowledge or intent, like any element of a crime, may be

proved by circumstantial evidence as long as that evidence

excludes all reasonable hypotheses of innocence flowing from it.

See Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759

(1980); Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993).

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). 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

2 Code § 18.2-183 provides a rebuttable presumption that a defendant acted with both requisite mental states if he fails, within a certain period following actual or constructive written notice of the dishonor, to pay the amount due, including any interest and protest fees. The Commonwealth correctly conceded at trial that the statutory presumption does not apply in this case.

- 9 - determination. See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989). The fact finder is not required to

believe all aspects of a witness' testimony; it may accept some

parts as believable and reject other parts as implausible. See

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993).

Here, the evidence establishes that appellant assured

Viglione he had sufficient funds in his corporate account to

cover the $14,700 check. Appellant testified at trial that he

believed he had sufficient funds in the account because he had

deposited into the account a $50,000 check. However, he also

admitted that he could have deposited the $50,000 check as few

as three days prior to writing the check for the car and that he

thought when he deposited the out-of-state check that it could

take three to five days to clear. As a result, the trial court

was entitled to reject appellant's testimony that he believed

his account contained sufficient funds and to conclude that

appellant knew when he wrote the check for the car that the

$50,000 out-of-state check he allegedly deposited had not yet

cleared.

Further, other evidence allowed the trial court to conclude

that appellant never deposited any such check, also supporting

the finding that he knew the account contained insufficient

funds and that he acted with an intent to defraud when he wrote

the check. When Viglione received the check back and learned

- 10 - that appellant's account did not contain sufficient funds to

cover the check, he called appellant's business number, and

appellant claimed he had deposited a large check into the

account and was merely waiting for it to clear. Appellant gave

Viglione this same information repeatedly over the course of

several weeks. When Viglione confronted appellant with

information he obtained from the bank that no large check had

been deposited, appellant did not contend otherwise and simply

stated that he would make other arrangements to pay the

outstanding balance. Appellant led Viglione to believe he would

be returning to Richmond shortly thereafter but still had not

returned a week later. Appellant then told Viglione he would

wire the money. He even asked Viglione for the business'

account information in order to complete the wire transfer, but

he never wired the money. At some point during the process,

appellant's business phone was disconnected, and Viglione

attempted to contact appellant through his father. Appellant

never made payment, and about three months after appellant

received the car, his father made payment in full.

The only reasonable hypothesis flowing from all the

evidence, viewed in the light most favorable to the

Commonwealth, is that when appellant delivered the $14,700 check

to Viglione, he acted with both an intent to defraud and

knowledge that the account contained insufficient funds.

- 11 - For these reasons, we affirm appellant's conviction.

Affirmed.

- 12 -