Alice Dagenhart v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia
ALICE DAGENHART
v. Record No. 2547-94-2 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Lee A. Harris, Jr., Judge
Christopher J. Collins for appellant.
John H. McLees, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Condon, Assistant Attorney General,
on brief), for appellee.
Alice Dagenhart (appellant) was convicted in a bench trial
of making and delivering a bad check in violation of Code
§ 18.2-181. On appeal, she argues that the trial court erred in
finding the evidence sufficient to support her conviction. For
the reasons that follow, we reverse the trial court.
In February 1994, appellant was renting a townhouse from
Pointe Rentals. She wrote her February rent check on February
28, 1994, and delivered the check to the rental agent on March
14, 1994. Appellant's bank refused to honor the check because
appellant's account was closed. At trial, the bank records
custodian testified that appellant last deposited funds in the
account on February 24, 1994, and that the bank closed the
account due to numerous overdrafts on March 3, 1994. The trial
court found appellant guilty of violating Code § 18.2-181, the
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
bad check statute, and denied a later motion to set aside the
verdict.
Appellant argues that the evidence failed to support her
conviction because the rent check was not "present consideration
for goods or services," but rather was a payment for a past debt
and outside the scope of Code § 18.2-181. 1 We agree.
"To prove a bad check offense [under Code § 18.2-181], it is
not necessary that anything be received in return for the check.
1
Code § 18.2-181 provides as follows:
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, or credit with, such
bank, banking institution, trust company, or
other depository, for the payment of such
check, draft or order, although no express
representation is made in reference thereto,
shall be guilty of larceny; and, if this
check, draft, or order has a represented
value of $200 or more, such person shall be
guilty of a Class 6 felony. In cases in which
such value is less than $200, the person
shall be guilty of a Class 1 misdemeanor.
The word "credit" as used herein, shall
be construed to mean any arrangement or
understanding with the bank, trust company,
or other depository for the payment of such
check, draft or order.
Any person making, drawing, uttering or
delivering any such check, draft or order in
payment as a present consideration for goods
or services for the purposes set out in this
section shall be guilty as provided herein.
2
The offense is complete when, with intent to defraud, a person
makes or draws or utters a check he knows to be worthless." Bray
v. Commonwealth, 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990).
However, Code § 18.2-181 is "intended to include bad checks
issued as present consideration for [goods and] services and
intended to exclude bad checks given as payment for past debts or
as gifts." Id. at 422, 388 S.E.2d at 839 (emphasis added). See
also Sylvestre v. Commonwealth, 10 Va. App. 253, 257-58, 391
S.E.2d 336, 339 (1990) (Code § 18.2-181 does not "make it the
crime of larceny to give a bad check as payment for past debts").
The outcome of this case is controlled by Bray and
Sylvestre. We hold that the trial court erred in finding that
appellant's actions violated Code § 18.2-181. The record
established that appellant made and delivered a check for past
rent, actions not within the scope of Code § 18.2-181.
Accordingly, the decision of the trial court is reversed and
the charge against appellant dismissed.
Reversed and dismissed.
3