Wileman v. Commonwealth

484 S.E.2d 621, 24 Va. App. 642, 1997 Va. App. LEXIS 299
CourtCourt of Appeals of Virginia
DecidedMay 6, 1997
Docket1139962
StatusPublished
Cited by15 cases

This text of 484 S.E.2d 621 (Wileman v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wileman v. Commonwealth, 484 S.E.2d 621, 24 Va. App. 642, 1997 Va. App. LEXIS 299 (Va. Ct. App. 1997).

Opinion

MOON, Chief Judge.

Dean A. Wileman, Jr., appeals his convictions of grand larceny by false pretenses in violation of Code §§ 18.2-178 and 18.2-95 and of making and uttering a bad check in violation of Code § 18.2-181. Wileman contends: (1) the trial court erred in admitting opinion testimony that the signature on a check allegedly made and passed by Wileman and the signature on a bank signature card were the same; (2) the evidence was insufficient to sustain his conviction for making and uttering a bad check; and (3) the evidence was insufficient to sustain his conviction for grand larceny.

We hold (1) that the trial court properly admitted opinion testimony concerning the legitimacy of Wileman’s signature, by a bank officer with more than twenty-four years of experience whose duties involved verification of customer signatures; (2) that the testimony of a bank teller, who knew Wileman by sight, that Wileman presented the check, coupled with testimony that the signature on the bad check was Wileman’s, was sufficient to sustain Wileman’s conviction for making and uttering a bad check; and (3) that the evidence was sufficient to sustain Wileman’s conviction for grand larceny by false pretenses. For these reasons, we affirm.

*646 Bad Check

On May 9, 1994, check # 1020, drawn on the United Jersey Bank for $8,975, was deposited into the South Boston Bank account of Wileman’s business, J.L. Motors. The check was received by Michelle Howerton, a teller at South Boston. Howerton testified that she was positive that the check was deposited by Wileman. South Boston’s banking procedures require that tellers ask for identification for any deposit by any customer they do not recognize and that when doing so, that they indicate on the check that identification was requested and received. Howerton stated that although she did not recall the exact transaction in which Wileman presented check # 1020, she was certain it was Wileman, because if she had not recognized the presenter of the check, even where the check was being deposited into the depositor’s account, she would have requested identification and so indicated on the check.

Wileman’s account was given immediate credit for the sum of check # 1020 when the check was originally deposited. Check # 1020 was returned to South Boston marked, “Acct. Not Found.” Subsequently, Wileman wrote other checks on the South Boston account for which there were insufficient funds as a result of the nonpayment of check # 1020.

At trial, Lonnie Powell, Vice-President of South Boston Bank and the chief executive officer for local branches, testified that he had been a banker for twenty-four years and that his duties included identifying and authenticating signatures of bank customers. Wileman’s South Boston signature card was introduced without objection and Powell compared the signature card with Wileman’s signature on two of Wileman’s other checks and the signature appearing on check # 1020. Powell concluded that the signatures were the same on the three instruments and the signature card. Counsel for Wileman objected to Powell’s testimony, arguing that Powell was not a handwriting expert and that his opinion invaded the province of the trier of fact.

*647 Opinion Testimony

In Virginia, a lay witness may only offer an opinion as to the authenticity of an alleged writing of a particular person where the witness has seen and is familiar with that person’s writing. Adams v. Ristine, 138 Va. 273, 287, 122 S.E. 126, 130 (1924). In essence, “the lay witness who has previously seen the genuine writing of the person alleged to have written the questioned document is ‘comparing’ the questioned document with his recollection of the genuine handwriting.” 1 Charles E. Friend, The Law of Evidence in Virginia § 15-11 (4th ed.1993).

A lay witness who is not familiar with a particular person’s handwriting cannot be provided a sample of that person’s writing for purposes of familiarizing himself or herself with it, before comparing an alleged sample to a genuine sample. Such a side-by-side comparison of genuine samples and alleged samples, by a party unfamiliar with the alleged writer’s handwriting, is the sole province of the expert witness. Hanriot v. Sherwood, 7 Hans. (82 Va.) 1, 10 (1884). Where a witness is neither an expert nor familiar with the writings of the person whose writings are in question, it is error for the trial court to allow the witness to offer an opinion on such a comparison, as the jury is as qualified as the witness to make the comparison. Adams, 138 Va. at 287, 122 S.E. at 130.

Whether a particular witness is qualified to testify as an expert is “largely a matter in the discretion of the trial court, and its rulings allowing a witness to testify will not be disturbed unless it clearly appears that he was not qualified.” Id. at 288, 122 S.E. at 130. Here, a comparison of Wileman’s signatures was made by Powell, a Vice-President at South Boston with twenty-four years of banking experience. Powell testified that he was regularly called upon to identify and authenticate his customers’ signatures. Powell’s work experience was sufficient to qualify him as an expert witness. See *648 Updike v. Texas Co., 147 Va. 208, 212, 136 S.E. 591, 593 (1927); Adams, 138 Va. at 288-89, 122 S.E. at 130.

In Adams, the Virginia Supreme Court held that, bank officials and clerks of court of long experience in examining and comparing signatures and writings may, in the discretion of the trial court, give their opinion as to whether or not the body of the will, the signature thereto and the names of one attesting witness were written in the same ink as the name of the other attesting witness, and as to which of the two was the later writing.

138 Va. at 288, 122 S.E. at 130 (citing Savage v. Bowen, 103 Va. 540, 49 S.E. 668 (1905)). Accordingly, the Court ruled that the trial court did not err in permitting a banker with twenty years of experience, who testified that his duties required him to “examine signatures as a daily incident of his business, to testify as an expert.” Id.

In Updike, the Court held it was error, under its ruling in Adams, not to permit a witness with thirty years of banking experience, whose duties required him to “scrutinize handwritings” and who was then vice-president and cashier of the Lynchburg National Bank, to compare genuine and alleged signatures of the defendant and to offer an opinion on the validity of the questioned signature.

Powell’s qualifications were equal to or surpassed the bankers’ qualifications who were deemed qualified in the Updike and Adams cases to give an opinion on the validity of a person’s signature. Accordingly, we find the trial court did not err in overruling Wileman’s counsel’s objection that Powell was not qualified as an expert witness on the validity of a signature.

Further, we find that the record contained sufficient circumstantial evidence to sustain a finding that the signature card of Wileman’s J.L.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vashon Nicketta Canty v. Commonwealth of Virginia
Court of Appeals of Virginia, 2022
Mark M. Whitaker v. Commonwealth of Virginia
Court of Appeals of Virginia, 2019
Edward Jerome Bullano v. Renee Zeigler Bullano
Court of Appeals of Virginia, 2007
Fitzgerald v. Commonwealth
630 S.E.2d 337 (Court of Appeals of Virginia, 2006)
Tobias Norrell, s/k/a, etc v. Commonwealth
Court of Appeals of Virginia, 2003
Commonwealth v. O'Connell
783 N.E.2d 417 (Massachusetts Supreme Judicial Court, 2003)
Anabel Basinger v. Commonwealth of Virginia
Court of Appeals of Virginia, 2000
Wadkins v. Arnold
Fourth Circuit, 2000
Johnson v. Commonwealth
529 S.E.2d 769 (Supreme Court of Virginia, 2000)
Floyd Martin Lane, s/k/a Floyd M. Lane, Sr. v. CW
Court of Appeals of Virginia, 1999
Edward Wayne Beverly v. Commonwealth of Virginia
Court of Appeals of Virginia, 1999
Patricia A. Smith v. Walter H. Warme, Jr.
Court of Appeals of Virginia, 1998
State v. Loftus
1997 SD 131 (South Dakota Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
484 S.E.2d 621, 24 Va. App. 642, 1997 Va. App. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wileman-v-commonwealth-vactapp-1997.