Robert Carl Burnett v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
ROBERT CARL BURNETT
MEMORANDUM OPINION * BY
v. Record No. 0111-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Robert Carl Burnett (appellant) was convicted in a bench
trial of two counts of grand larceny by check in violation of
Code § 18.2-181.1. Appellant contends the evidence was
insufficient to prove beyond a reasonable doubt that he committed
the offenses charged. We find no error and affirm.
I.
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 Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997). So viewed, the evidence established that
on June 13, 1997, appellant opened a bank account at American
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
National Bank with an initial deposit of $15,049.54. Between
June 13 and June 18, 1997, appellant wrote eight checks totaling
approximately $14,840. He withdrew $400 from an automatic teller
machine (ATM) on June 19, and $300 from an ATM on June 20, 1997.
Appellant made no deposits into the account after the initial
June 13 deposit. On July 3, 1997, the bank mailed a letter to
appellant at his last known address, advising him that his
account had been forcibly closed and that it was overdrawn by
more than $500. Appellant testified that he did not receive the
bank's letter.
Between June 28 and July 4, 1997, appellant wrote seven
checks to Ed's Stop N Go, totaling $252.13. The first check was
returned for insufficient funds, and the latter six were
returned, marked "account closed." Stop N Go mailed appellant a
demand letter on July 23, 1997, by certified mail, return receipt
requested, which was returned as "unclaimed." This letter was
mailed to 10 Laurel Avenue, the address on appellant's checks.
On July 5, July 11, and July 14, 1997, appellant wrote three
checks, totaling $282.42, to Harris Teeter. All three checks
were returned, marked "account closed." Brenda Poole, a manager
at Harris Teeter, testified that she called the phone number on
appellant's checks on July 25 and spoke to an individual who
identified himself as "Robert." Poole advised "Robert" that his
checks had not cleared and that he needed to reimburse Harris
Teeter. On August 1, 1997, Poole mailed a demand letter by
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certified mail, return receipt requested, to the Laurel Avenue
address listed on appellant's checks. The letter was
subsequently returned to Harris Teeter as undelivered.
Appellant testified that he moved from the Laurel Avenue
address during the last week in June. He did not make any
notations on his checks indicating that he had moved. Although
appellant arranged with the postal service to forward his mail to
his new address, he did not inform the bank about the change of
address. Appellant also testified that as he wrote the checks he
made notations in his check register. Both Stop N Go and Harris
Teeter were reimbursed by appellant in November 1997, the week
before he was tried on these charges.
The trial court found that the Commonwealth established a
prima facie case of intent and knowledge pursuant to Code
§ 18.2-183. However, the trial court further noted that there
was sufficient evidence, even without the statutory presumption,
to find appellant guilty.
II.
On appeal, "[w]e may not disturb the trial court's judgment
unless it is ``plainly wrong or without evidence to support it.'"
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
904 (1998) (citation omitted). In addition, "the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination." Marshall v. Commonwealth, 26 Va. App.
627, 633, 496 S.E.2d 120, 123 (1998).
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Under Code § 18.2-181.1, 1 the Commonwealth was required to
prove that: (1) appellant wrote two or more checks on the same
bank account; (2) the checks were written to the same person,
firm or corporation; (3) he knew when he wrote the checks that he
did not have sufficient funds in his account to cover their
payment; (4) he wrote the checks with the intent to defraud; (5)
the checks were written within a ninety-day period; (6) the
aggregate value of the checks written to each store exceeded
$200; and (7) the appellant received goods or services for each
check.
1
Code § 18.2-181.1 provides:
It shall be a Class 6 felony for any person,
within a period of ninety days, to issue two
or more checks, drafts or orders for the
payment of money in violation of § 18.2-181,
which have an aggregate represented value of
$200 or more and which (i) are drawn upon the
same account of any bank, banking institute,
trust company or other depository and (ii)
are made payable to the same person, firm or
corporation.
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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Appellant contends that his convictions should be reversed
because the evidence was insufficient to prove that he knew, when
he wrote the checks, that his account did not have sufficient
funds or that he intended to defraud the two merchants. He
argues that the Commonwealth must show that he had actual notice
of any overdraft in his bank account at the time the checks were
written.
The law does not require the Commonwealth to prove
by direct evidence the defendant's actual
notice of insufficient funds to support a
conviction of larceny by check. The intent
to defraud may be proven by circumstantial
evidence. Under Code § 18.2-183, the making
or drawing or uttering or delivery of a
check, . . . 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 certified
or registered mail, evidenced by return
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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.
(Emphasis added). The statute further provides that "the
foregoing notice, when sent by certified or registered mail to
such address, . . . 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." Code § 18.2-183.
The facts presented here, taken as a whole, were sufficient
to prove appellant's guilt beyond a reasonable doubt. Appellant
conceded at trial that the requisite letter sent by Stop N Go
complied with the above statute. Similarly, Brenda Poole of
Harris Teeter testified that she sent a letter to appellant on
August 1, 1997, which explained that he had five days to pay the
returned checks. Both merchants sent appellant demand letters
pursuant to Code § 18.2-183, but did not receive payment from him
within five days. Accordingly, the Commonwealth presented prima
facie evidence that appellant intended to defraud each of the
victims.
Nevertheless, appellant contends that the trial judge did
not rely on the statutory inference when finding appellant
guilty. To the contrary, the trial court specifically ruled that
the Commonwealth benefitted from the presumption of the statute.
The trial judge added: "I think that [the presumption] isn't
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needed in this case, based on the evidence that has been adduced
hereto." While the Commonwealth relied on Code § 18.2-183 to
establish a prima facie case, there was additional evidence to
support a finding that appellant knew his bank account had
insufficient funds when he wrote the several checks. After
making the initial and only deposit of approximately $15,000 into
the account, appellant spent the entire sum within one week.
Thereafter, he made ATM withdrawals totalling $700, which
resulted in an overdraft of $511.61 and the closing of his
account. This was four days before appellant wrote the first of
the checks to Stop N Go.
Although appellant denied any intent to defraud and
knowledge of insufficient funds in his account, the fact finder
was not required to believe him nor give any weight to his
testimony. See Marable v. Commonwealth, 27 Va. App. 505, 509-10,
500 S.E.2d 233, 235 (1998) ("In its role of judging witness
credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt."). The trial court was
not plainly wrong when it concluded that appellant had knowledge
that his bank account was overdrawn when he wrote the checks.
The Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable doubt
that appellant was guilty of both counts of issuing bad checks.
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Accordingly, appellant's convictions are affirmed. 2
Affirmed.
2
Appellant also contends for the first time on appeal that
Code § 18.2-183, as applied in this case, is unconstitutional
because "it places an undue burden on the poor." Assuming
without deciding the constitutionality of the statute, there was
substantial circumstantial evidence, in the absence of the
statutory inference, to support appellant's convictions.
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