Stephen Harold Schrieberg v. Commonwealth of VA ( 2000 )

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.
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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--
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* * * * * * *
[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
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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
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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).
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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
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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.
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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.
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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
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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.
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For these reasons, we affirm appellant's conviction.
Affirmed.
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