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Stephen Harold Schrieberg v. Commonwealth of VA ( 2000 )


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  •                      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
    - 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).
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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.
    - 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
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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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