Carl Wesley Ernest Warner v. Commonwealth of VA , 30 Va. App. 141 ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
CARL WESLEY ERNEST WARNER
OPINION BY
v. Record No. 0982-98-4 JUDGE DONALD W. LEMONS
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Barry A. Zweig, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard B. Campbell, Assistant Attorney
General, on brief), for appellee.
Carl Wesley Ernest Warner appeals his bench trial
conviction of feloniously uttering a check with knowledge that
the account on which the check was drawn contained insufficient
funds, a violation of Code § 18.2-181. On appeal, he contends
that the evidence was insufficient to support his conviction and
that the trial court’s admission of hearsay evidence was
reversible error. We disagree and affirm the conviction.
I. BACKGROUND
On August 14, 1997, Carl Wesley Ernest Warner, appellant,
an employee of Aliloo Oriental Rugs, requested that he be paid
his weekly wage a day early. The evidence at trial revealed
that Warner received a check for $231 and attempted to cash it
on August 15, 1997. The bank informed him that the account
contained insufficient funds. Warner told his employer, and his
employer gave him a second check for $200. Warner retained the
check for $231. Warner cashed the $200 check that day. On
August 17, 1997, he cashed the check for $231 at the Aldie
Country Store.
In the absence of the owner, Parviz “Paul” Hadjialilo,
Christopher Syrjala was operating Aliloo Oriental Rugs. Syrjala
testified that Warner told him “the bank wouldn’t cash the check
because of insufficient funds.” Syrjala stated that he went to
the bank and was informed that the account contained only $218.
Syrjala stated that he “told . . .[Warner] there was $218 in the
account, that I would write a check for $200, which was most of
. . . [Warner’s] salary, and that Paul [Hadjialilo] would fix it
up when he got back, you know, the underpayment.” Syrjala
testified that he wrote the check for $200 and Warner
immediately went to Southern Financial Bank and cashed it.
Syrjala stated that he did not ask Warner to return the $231
check because “it seemed totally unnecessary. . . . I mean, it
was obvious that it was a bad check at that point.” Syrjala
stated that he had initially mentioned that Warner might try
cashing the $231 check at a country store, but testified, “then
I thought better of it and came up with the idea of writing the
second check that was within the amount of that in the account.”
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On Saturday, August 16, 1997, Warner was supposed to work,
but Warner’s girlfriend called to tell Syrjala that Warner was
unable to come into work because a family member was ill. After
cashing both checks, Warner never went back to work for Aliloo
Oriental Rugs.
Syrjala testified that he received a call from Eagle Check
Cashing in Manassas, Virginia. In response to the call, Syrjala
stated that he “told them that a bank had refused to cash the
check. . . .” Syrjala identified the check at trial as “[t]he
one for $231 because of insufficient funds. . . .”
Hadjialilo testified that he received a call from a check
cashing company in Manassas and he told them “the check is not
good, not to cash the check.” Hadjialilo stated that he called
Southern Financial Bank and issued a stop payment on the $231
check.
Warner testified that he believed that the $231 check was,
in part, pre-payment for the following weekend and week’s wages.
Warner stated that he did not work because his father had a
heart attack. Warner stated that the bank had not informed him
that the account contained insufficient funds and that when he
cashed the $231 check, he did not know that there were
insufficient funds.
II. SUFFICIENCY OF THE EVIDENCE
Where the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
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reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). “Intent is the
purpose formed in a person’s mind that may, and often must, be
inferred from the facts and circumstances in a particular case,
and may be shown by a person’s conduct.” Hernandez v.
Commonwealth, 15 Va. App. 626, 632, 426 S.E.2d 137, 140 (1993)
(citations omitted). The “[i]ntent to defraud means that the
defendant intends to deceive another person, and to induce such
other person, in reliance upon such deception, to assume,
create, transfer, alter or terminate a right, obligation or
power with reference to property.” Sylvestre v. Commonwealth,
10 Va. App. 253, 258-59, 391 S.E.2d 336, 339 (1990) (citations
omitted).
On appeal, Warner acknowledges that he cashed the $231
check but argues that the evidence was insufficient to prove he
had the intent to defraud or knowledge that the account
contained insufficient funds when the check was uttered. Warner
also contends that he had a bona fide claim of right to the $231
check, which negated the criminal intent required for his
conviction, and that the evidence was insufficient to prove that
the Aldie Country Store is a depository as required by the
indictment.
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A. Claim of Right
At trial, Warner stated that Syrjala gave him the $231
check, in part, as prospective payment for the following week.
Warner testified that he intended to work the next week, prior
to his father’s heart attack, and that the money would then be
“owed” to him. On appeal, Warner asserts that he believed he
was entitled to the money, in part, as a prospective wage at the
time he uttered the check, and in part because he was still owed
thirty-one dollars from the previous week. Consequently, he
maintains he lacked the requisite intent to defraud the Aldie
Country Store.
Warner cites Butts v. Commonwealth, 145 Va. 800, 133 S.E.
764 (1926), for the proposition that a person cannot commit a
larceny of his or her own property or of property that a person
in good faith believes is his or her own. In Butts, the
defendant was fired from his job without being paid his final
wages. Butts returned to his former place of employment with a
pistol and demanded payment from his supervisor at gunpoint.
The Court reversed Butts’ robbery conviction, holding that
Butts’ claim of right to the wages negated the requisite
criminal intent for the conviction. See id. at 813-15, 133 S.E.
at 768-69. Butts is distinguishable from the case before us
because Warner had been paid $200 for the hours he worked. He
was owed only thirty-one dollars. He did not earn an additional
$200, either at the time the check was uttered or the following
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week. The evidence established that Warner was routinely paid
retroactively, not prospectively.
Additionally, a claim of right defense only applies against
a party that holds that person’s funds. A party may not assert
a “claim of right” against an innocent third party. Here, the
victim of the uttering was the Aldie Country Store, not Warner’s
employer.
B. “Depository” Language in the Indictment
On appeal, Warner argues that the evidence was insufficient
to prove that he defrauded a “bank or other depository” as
charged in the indictment. Code § 18.2-181 states in relevant
part:
Any person who, with intent to defraud,
shall make or draw or utter or deliver any
check, draft, or order for the payment of
money, upon any bank, banking institution,
trust company, or other depository, knowing,
at the time of such making, drawing,
uttering or delivering, that the maker or
drawer has not sufficient funds in . . .
shall be guilty of larceny. . . .
Warner argues that the Aldie Country Store is not a
depository as defined by Code § 18.2-181. Warner, however,
misconstrues the use of the term “depository” in the statute. A
“depository bank” refers to “the first bank to which an item is
transferred for collection even though it is also the payor
bank.” Code § 8.4-105(a). A “payor bank” is defined as “a bank
by which an item is payable as drawn or accepted.” Code
§ 8.4-105(b). Therefore, a depository as defined by the
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legislature is the institution upon whose funds the check is
drawn. Here, the depository referred to in the indictment is
Southern Financial Bank, not the Aldie Country Store.
To construe the statute as Warner suggests would
criminalize the passing of bad checks only when they are passed
directly at the depository bank. We hold that the “depository”
language in Code § 18.2-181 refers to the institution upon which
the funds are drawn, not to the entity where the check is
uttered.
III. HEARSAY EVIDENCE
On appeal, Warner argues that the trial court erred in
admitting evidence in violation of the hearsay rule. We agree,
but we find that the admission of the statements was harmless
error.
Hearsay is “testimony which consists [of] a narration by
one person of matters told him by another.” Williams v. Morris,
200 Va. 413,417, 105 S.E.2d 829, 832 (1958). “The strongest
justification for the exclusion of hearsay evidence is that the
trier of fact has no opportunity to view the witness on
cross-examination and to observe the demeanor of the
out-of-court declarant to determine reliability.” Evans-Smith
v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441
(1987), citing C. Friend, The Law of Evidence in Virginia § 224
(2d ed. 1983). However, “[i]f the declaration is offered solely
to show that it was uttered, without regard to the truth or
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falsity of its content, the declaration is not excluded by the
hearsay rule.” Evans-Smith, 5 Va. App. at 197, 361 S.E.2d at
441 (citations omitted) (emphasis omitted).
Warner objected to the admission of the following testimony
from Syrjala:
Q: Do you recall when you actually opened
the office whether or not you received a
phone call from Eagle Check Cashing Company?
A: Yes.
DEFENSE COUNSEL: Objection, hearsay.
THE COURT: State the grounds of your
objection.
DEFENSE COUNSEL: Hearsay.
THE COURT: Whether or not a call was
received is not hearsay. She did not ask
what the content of the conversation was.
Overruled.
DEFENSE COUNSEL: May I –
THE COURT: Overruled. Go ahead.
COMMONWEALTH: Thank you, Your Honor.
Q: Do you recall what day it was in the
sequence of events that you got this call?
A: Saturday morning just after I opened the
store, about 15 minutes afterwards, I got a
call from Eagle Check Cashing in Manassas
asking me to verify –
Q: -- just answer the question that I asked
you. Now, as a result of Eagle Check
Cashing, what if any response did you make
back to those people during your telephone
conversation with them?
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A: Well, can I say what they asked?
THE COURT: No. That’s hearsay. The
objection made by [defense counsel] is
sustained. Actually, the Commonwealth
backed off. You may not because it’s
hearsay, sir.
A: I told them that a bank had refused to
cash the check yesterday.
Q: What check?
A: The one for $231 because of insufficient
funds I gave them as the reason.
Warner also objected to the following testimony from
Hadjialilo:
Q: Now, regarding the exhibit that I showed
you, the check in the amount of $231, did
you have a conversation with him about the
check?
A: I saw Mr. Warner after I had a call from
a check cashing company in Manassas.
DEFENSE COUNSEL: Your Honor, I would object
as to hearsay.
THE COURT: If he had the call, it is a
fact. There’s been no question and no
statement regarding any hearsay. Overruled
at this stage.
Q: After receiving that phone call from the
check-cashing place in Manassas, what did
you do with regard to . . . Warner?
A: They told me there’s a - -
THE COURT: Don’t tell what they told you.
The question is what did you do.
WITNESS: What I told - - can I tell them
what I told them?
THE COURT: Answer the question.
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Q: What did you tell the bank institution
that called you?
A: I told them that the check is not good,
not to cash that check. He already got paid
for the work that he worked and I tried to
get in touch with Mr. Warner. And,
actually, I saw him again in the street, and
I was kind of disappointed I told him. I
showed him my disappointment [sic] and got a
call the next day from John Beiler at the
country store.
Warner argues that in both instances the court erred in
allowing Syrjala and Hadjialilo to testify that the phone calls
were received from check cashing companies. We agree.
Testimony that phone calls were received is not hearsay.
Testimony that a phone call came from a person unknown to the
recipient and who is identified only by the caller is hearsay if
offered to establish the identity of the caller. The only way
Syrjala and Hadjialilo could know who was calling was from an
out-of-court declaration from the caller. The relevancy of
Syrjala’s and Hadjialilo’s responses to the call is dependent
upon who made the call. Clearly, this information lacks any
significance unless the source of the call is known. Similarly,
it is clear that the identification of the caller in each
instance was based solely upon out-of-court declarations and was
offered for the truth of the matters stated.
“Error will be presumed prejudicial unless it plainly
appears that it could not have affected the result.” Joyner v.
Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951).
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Therefore, “[a] criminal conviction shall not be reversed for an
error committed at trial when it plainly appears from the record
and the evidence given at the trial that the parties have had a
fair trial on the merits and substantial justice has been
reached.” Hanson v. Commonwealth, 14 Va. App. 173, 189, 416
S.E.2d 14, 23 (1992) (citations omitted); see Code § 8.01-678.
A nonconstitutional error is harmless if “it
plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict.” “An error does not
affect a verdict if a reviewing court can
conclude, without usurping the jury’s fact
finding function, that had the error not
occurred, the verdict would have been the
same.”
Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620
(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc)).
Excluding the hearsay evidence that Syrjala and Hadjialilo
both received phone calls from a check cashing company in
Manassas, the Commonwealth presented overwhelming evidence to
prove that Warner cashed the $231 check with the intent to
defraud and with knowledge that the funds in the account were
insufficient. Syrjala testified that Warner told him that the
bank refused to cash the $231 check because the funds in the
account were insufficient. Syrjala wrote a second check to
Warner in the amount of $200, which the funds in the account
were sufficient to cover, and told him that Hadjilalilo would
pay him an additional thirty-one dollars when he returned to the
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country. Warner cashed the check for $200. Two days later, he
presented the $231 check to the Aldie Country Store. Syrjala
testified that he did not ask Warner to return the $231 check
because Warner knew that the check was “bad.” Warner never
returned to work at Aliloo Oriental Rug Corporation.
IV. CONCLUSION
The evidence is sufficient to prove beyond a reasonable
doubt that Warner knew the account contained insufficient funds
to cover the $231 check when he presented it to the Aldie
Country Store. He is not entitled to a claim of right defense
because he was not entitled to the sum of $231 and the right may
not be asserted against an innocent victim who does not hold the
funds claimed. Finally, we hold that the trial court erred in
admitting hearsay statements concerning two phone calls;
however, upon review of the record we conclude that the error
did not affect the verdict. Accordingly, the conviction is
affirmed.
Affirmed.
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