Mark Anthony Maxey v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Salem, Virginia
MARK ANTHONY MAXEY
MEMORANDUM OPINION * BY
v. Record No. 1856-98-3 JUDGE LARRY G. ELDER
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
Anna Marie Bagwell (Office of the Public
Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Mark Anthony Maxey (appellant) appeals from his bench trial
conviction for attempting to obtain a controlled substance by
fraud in violation of Code § 18.2-258.1. On appeal, he contends
the trial court erroneously held that (1) the statute did not
require proof he knew the prescription was forged; and (2) the
evidence was sufficient to prove he acted with the requisite
knowledge or intent. For the reasons that follow, we affirm
appellant’s conviction.
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
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id. 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
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
“‘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.’” Moore v. Commonwealth, 207 Va. 838, 841, 153
S.E.2d 231, 233 (1967) (quoting Bullock v. Commonwealth, 205 Va.
558, 561, 138 S.E.2d 261, 263 (1964)). Uttering is “‘[t]o put
or send [as a forged check] into circulation. . . . to utter and
publish.’ It is an assertion by word or action that a writing
known to be forged is good and valid.” Bateman v. Commonwealth,
205 Va. 595, 599-600, 139 S.E.2d 102, 106 (1964) (quoting
Black’s Law Dictionary 1716 (4th ed. 1968)) (emphasis added).
Here, although the trial court said the statute “does not
go into intent and knowledge,” it noted that the statute
proscribes the uttering of a false or forged prescription. Of
course, as outlined above, uttering requires proof of knowledge
that the prescription is forged. Therefore, based on the
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principle that a trial court is presumed to know the law
“[a]bsent clear evidence to the contrary in the record,” see
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,
291 (1977), we presume that the trial court was aware of the
knowledge requirement in convicting appellant of the charged
offense.
We also hold that the evidence is sufficient to prove
appellant acted with the requisite intent to commit fraud in
attempting to use the prescription to obtain a controlled
substance. See, e.g., Wynn v. Commonwealth, 5 Va. App. 283,
292, 362 S.E.2d 193, 198 (1987) (holding that attempt to commit
an offense requires specific intent). Intent, like any element
of a crime, may be proved by circumstantial evidence, see Servis
v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988), such as a person’s conduct and statements, see Long v.
Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
“Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is 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). However, “the Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant.”
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993).
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Here, the evidence proved that appellant delivered the
forged prescription to the pharmacy to be filled and completed
the patient profile on Maxey’s behalf, using the name Melanie
Maxey, the same name that appeared on the prescription.
Appellant admitted to Officer Lowery that he and Maxey were not
legally married and merely had been living together for two
months. The only reasonable hypothesis flowing from this
evidence was that Maxey was not Melanie’s legal surname and that
appellant was aware of that fact when he presented the
prescription to be filled. This evidence supports the trial
court’s finding that he intended “to obtain [a] drug . . . by
fraud” in violation of the statute.
The decision in McCutcheon v. Commonwealth, 224 Va. 30, 294
S.E.2d 808 (1982), supports this conclusion. In McCutcheon, the
Court held that the accused violated Code § 18.2-258.1(A)(iv),
which makes it “unlawful for any person to obtain or attempt to
obtain any drug ‘by the use of a false name.’” 224 Va. at 32,
294 S.E.2d at 809. McCutcheon used a false name and obtained a
prescription, but he presented evidence from the prescribing
physician that he would have prescribed the drug for the accused
if he had given the physician his real name. See id. at 33, 294
S.E.2d at 810. The Court observed in that case that the Drug
Control Act, of which Code § 18.2-258.1 was a part, was
inten[ded] to insure the accuracy and
completeness of drug-control records and to
aid their law-enforcement role by penalizing
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the use of a false name in obtaining or
attempting to obtain a controlled drug.
This legislative intent would be subverted
. . . by requiring the Commonwealth to prove
that a prescription would not have been
written or filled but for the use of a false
name.
224 Va. at 34, 294 S.E.2d at 811. As a result, held the Court,
“when the Commonwealth shows that the accused has used a false
name in obtaining or attempting to obtain a drug, a prima facie
violation is established. The burden then shifts to the accused
to go forward with evidence showing that his motivation to use a
false name was innocent.” Id. at 34-35, 294 S.E.2d at 811.
In appellant’s case, the only reasonable hypothesis flowing
from the evidence is that he knowingly used a false name in
completing the patient profile on Maxey’s behalf, the same false
name appearing on the prescription he presented to be filled,
and that he did so in an attempt to obtain a prescription drug
by fraud. Therefore, the evidence supported the trial court’s
finding that appellant uttered a false or forged prescription in
violation of Code § 18.2-258.1.
For these reasons, we affirm appellant’s conviction.
Affirmed.
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