Ronnie Lee Motsinger v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
RONNIE LEE MOTSINGER
MEMORANDUM OPINION * BY
v. Record No. 1406-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Albert L. Shaw for appellant.
Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Ronnie Motsinger (appellant) was convicted in a jury trial
of two counts of grand larceny by check, in violation of Code
§ 18.2-181. On appeal, he contends that the trial court erred
by instructing the jury on the rebuttable presumption of intent
to defraud provided by Code § 18.2-183. He argues that while
Code § 18.2-183 does not require the Commonwealth to prove the
date when the payee sent notice to the defendant, this Court
should imply such an obligation as a matter of law. Finding no
error, we affirm his convictions.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that appellant purchased
jewelry from Peter Paul Yun (Yun), the manager of Oknam Jewelry
(Oknam), a wholesale jewelry business in Atlanta, Georgia.
Appellant, trading as "Jewel City" in Danville, Virginia, had
done business with Yun for "one to two years" prior to the time
of the instant charges.
In the fall of 1996, appellant ordered two shipments of
jewelry from Oknam, which were sent by UPS. Yun later received
two checks from appellant for the orders. Check 173 was written
on September 14, 1996, in the amount of $868.56; check 175 was
written on September 18, 1996, in the amount of $974.54. The
business name on the checks was "Jewel City" and appellant
signed the checks.
Yun deposited the checks twice, but they were returned each
time unpaid and marked, "NOT SUFFICIENT FUNDS." Thereafter, he
attempted to contact appellant to demand repayment. Yun
testified as follows:
Q. What did you do after that to attempt
to collect on these two checks?
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A. I immediately sent Certified letters
for each check.
Q. And to what address did you send those
Certified letters to?
A. Jewel City, the address on the check.
Yun further testified that there were two additional checks
written to Oknam that were also returned for insufficient funds.
Yun stated that he sent notices for every check from Jewel
City that had bounced and the notices were returned "Refused."
One notice, sent on December 24, 1996, was admitted into
evidence. The return receipt card for that notice indicated
that delivery was attempted on three different dates and was
stamped, "UNCLAIMED."
On cross-examination, Yun admitted that he was not sure
whether the December 24, 1996 notice corresponded with either
check 173 or check 175.
Q. The question is, can you say that this
notice [dated December 24, 1996], as opposed
to some other notice . . . [and] it's an
important distinction for this case, that
this notice contained information about
these checks?
A. Those checks in your hand?
Q. Couldn't it have been the other two
checks?
A. May have been.
Q. Okay, so you're not sure of this
notice?
A. I'm not sure, no sir.
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However, Yun reiterated that four checks from Jewel City were
returned for insufficient funds and that he sent out a certified
letter on each check.
Q. Do you remember sending this notice for
these checks, absolutely, unequivocally, or
could there have been some . . . ?
A. Without, without a doubt in my mind,
any checks that have bounced from Jewel
City, a Certified letter went along with
that.
* * * * * * *
Q. Any checks that came from Jewel City
that bounced, of those checks, did you ever
not send a Certified notice?
A. No, I did send a Certified notice for
any bounced check coming from Jewel City.
That is standard procedure.
At the conclusion of the evidence, appellant objected to
Instruction No. 3, which provided as follows:
If the holder of a check sends notice by
certified or registered mail to the maker or
drawer of a check at the maker's address
written or printed on the face of the check,
whether that address is his home, office, or
otherwise, that the check has not been paid
to the holder, and if the maker or drawer
fails to pay the amount due on the check
together with interest within five days of
the notice, you may infer that the maker or
drawer had the intent to defraud or had
knowledge or insufficient funds in, or
credit with, the bank. You are further
instructed that such notice shall be deemed
sufficient and equivalent to notice having
been actually received by the maker or
drawer, whether such notice shall be
returned undelivered or not.
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The jury found appellant guilty of two counts of grand
larceny by check. Appellant filed a post-trial Motion to Set
Aside the Jury's Verdict, which was denied by the trial court.
II.
Code § 18.2-181, the statute under which appellant was
convicted, provides that it is unlawful for any person, with the
intent to defraud, to make, draw or utter a check, knowing at
the time of such making, drawing or uttering, there are
insufficient funds in his or her account. 1 Under Code
§ 18.2-183,
. . . the making or drawing or uttering or
delivery of a check, draft, or order,
payment of which is refused by the drawee
because of lack of funds or credit shall be
prima facie evidence of intent to defraud or
of knowledge of insufficient funds in, or
credit with, such bank . . . unless such
maker . . . shall have paid the holder
thereof the amount due thereon, . . . within
five days after receiving written notice
that such check . . . has not been paid to
the holder thereof. Notice mailed by
1
Code § 18.2-181 provides in part:
Any person who, with intent to defraud,
shall make or draw or utter or deliver any
check, . . . 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.
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certified or registered mail, evidenced by
return receipt, to the last known address of
the maker or drawer shall be deemed
sufficient and equivalent to notice having
been received by the maker or drawer.
If such check . . . shows on its face a
printed or written address, home, office, or
otherwise, of the maker or drawer, then the
foregoing notice, when sent by certified or
registered mail to such address, with or
without return receipt requested, shall be
deemed sufficient and equivalent to notice
having been received by the maker or drawer,
whether such notice shall be returned
undelivered or not.
(Emphasis added).
In the instant case, appellant concedes that Code
§ 18.2-183 does not require the Commonwealth to prove the date
the notice was sent or that the notice was actually received by
appellant. Additionally, he agrees that oral testimony or
circumstantial evidence may be used to show that the payee sent
the notice. Nevertheless, appellant asks this Court to imply
the obligation to establish the date the notice was sent even
though such proof is not required specifically by the statute.
"Where a statute is unambiguous, the plain meaning is to be
accepted without resort to the rules of statutory
interpretation." Sykes v. Commonwealth, 27 Va. App. 77, 80, 497
S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd. of
Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).
"Courts are not permitted to rewrite statutes. This is a
legislative function. The manifest intention of the
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legislature, clearly disclosed by its language, must be
applied." Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,
566, 29 S.E.2d 838, 841 (1944))).
Applying these rules to the instant case, we hold that Code
§ 18.2-183 does not require the Commonwealth to establish either
actual receipt of the notice or the date the payee sent the
notice. Rather, the statute only requires proof the notice was
sent by certified mail and the accused failed to repay the
amount due within five days. See Code § 18.2-183. Here, the
Commonwealth introduced the check numbers 173 and 175, which
were returned for insufficient funds. Yun testified he sent
certified letters to appellant requesting payment on each of the
checks in question. Significantly, the evidence established
that appellant never paid the amount due on the outstanding
checks and certainly he did not make payment within five days of
a written request to do so.
"[An appellate] court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Lewis v. Commonwealth, 28 Va. App. 164, 171, 502
S.E.2d 222, 225 (1998) (quoting Darnell v. Commonwealth, 6 Va.
App. 485, 488, 370 S.E.2d 717, 719 (1988)). Instruction No. 3
clearly stated the principle of law codified in Code § 18.2-183.
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Furthermore, the evidence fairly raised the presumption of
intent to defraud and having introduced evidence that certified
notice was sent to appellant, the Commonwealth was entitled to
rely upon that presumption. Finding no error, we affirm
appellant's convictions.
Affirmed.
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