Stacey Miller Vance v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
STACEY MILLER VANCE
MEMORANDUM OPINION∗ BY
v. Record No. 0508-06-4 JUDGE JAMES W. HALEY, JR.
MARCH 13, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
Roger A. Inger (Inger & Collins, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Convicted in a bench trial of petit larceny, Stacey Miller Vance (“appellant”) maintains the
evidence was insufficient to prove she wrote a bad check with the intent to defraud.1 We affirm.
STATEMENT OF FACTS
On December 24, 2004, a check in the amount of $168.18, written and signed by appellant,
was received by the Costco Wholesale store (“Costco”) in Frederick County, Virginia, as payment
for goods purchased on that date. The check was drawn on a joint account that appellant shared
with her husband at the Front Royal Federal Credit Union. That check was subsequently returned to
Costco, around the date of January 15, 2005, due to insufficient funds in the account to cover the
payment.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant was indicted for a felony third offense bad check pursuant to Code
§§ 18.2-181 and 18.2-104. The trial court reduced the charge to petit larceny at the conclusion of
the evidence.
Costco Administration Clerk Fonda Ingel, who handles all returned checks, testified that,
“immediately” after receiving the check back, appellant was sent “a standard form letter” notifying
her that the check had been returned. The notice was sent to the address printed on the check and
appellant was called at the phone number printed on the check, but the call was not answered. Ms.
Ingel also stated that the initial letter “did not come back to” Costco. She testified that on January
18 she made a second call to appellant’s home, which was also not answered, and sent a second
letter to appellant. On January 27, a third call was made to appellant’s home and a message was
left on appellant’s answering machine. Ms. Ingel testified that no one ever got back to her as a
result of that call. Finally, on February 4, a certified letter was sent to the address printed on
appellant’s check. The envelope, which was admitted into evidence without objection, was
returned to Costco with the notation: “Moved Left No Address.”
The Commonwealth also introduced into evidence appellant’s prior misdemeanor bad
check conviction under Code § 18.2-181 and a prior felony embezzlement conviction under
Code § 18.2-111.
Testifying in her own defense, appellant admitted writing the check to Costco on
December 24, 2004 and that the phone number and address printed on the check were correct at
the time she wrote it. Appellant testified, however, that she “believe[d] at the time [she] had
sufficient funds in [her] account to pay it.” She also testified that she subsequently moved from
the address printed on the check around January 18, 2005 and maintained that she left a
forwarding address with the post office at some point in time after her move. According to
appellant’s testimony, she was served with a warrant for felony bad check, pursuant to Code
§ 18.2-181, on or about April 28, 2005. She testified that she then paid the amount of the check
around the first week of May, 2005 but claimed that she had not received prior notice of the bad
check and did not know she had written a bad check prior to being served.
-2-
Upon cross-examination, appellant admitted that her phone number had stayed the same
even after her move, but testified that she never received any message from Costco. She also
testified that she never received any of the letters from Costco despite the fact that her husband
“was back and forth” to the original house.
Upon consideration of this evidence, the trial court found appellant guilty of petit larceny,
a misdemeanor, and sentenced her to 12 months in jail with all but four of those days suspended,
to be served on consecutive weekends, and unsupervised probation for a period of twelve
months. In issuing its ruling, the court noted the following as the basis for its decision:
I was impressed by the significant efforts that went beyond the
Statute, trying to make phone calls, trying to contact people,
sending them letters, sending them certified letters. That is an
awful lot for Costco to have done.
* * * * * * *
. . . [I]t seems to me that the law takes the next logical step
and that says, well, we have required [the payee] to notify [the
payer] to let them know [that the check has bounced] so they can
come by and make it good in case there was a lack of criminal
intent at the time the check was written.
STANDARD OF REVIEW
“On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The judgment of a trial
court sitting without a jury is entitled to the same weight as a jury
verdict and will not be set aside unless it appears from the evidence
that the judgment is plainly wrong or without evidence to support
it.”
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (quoting
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code
§ 8.01-680)).
Further, the Supreme Court has noted that “[g]reat deference must be given to the
factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their
-3-
testimony.” Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1988). See also
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
ANALYSIS
Appellant argues that the evidence is insufficient to prove either that she knew or should
have known that there were insufficient funds in her account when she wrote the check or that
the statutory presumption of intent was adequately raised.
This Court has stated, “Under the bad check statute, the gravamen of the offense is the
intent to defraud.” Sylvestre v. Commonwealth, 10 Va. App. 253, 258-59, 391 S.E.2d 336, 339
(1990). However, as the Commonwealth has noted, because “the drawer’s state of mind is
difficult to prove,” Bagheri v. Commonwealth, 12 Va. App. 1071, 1074, 408 S.E.2d 259, 260
(1991), the legislature has created “rule[s] of evidence upon which the Commonwealth may rely
in facilitating proof of the fraudulent intent.” Bray v. Commonwealth, 9 Va. App. 417, 423, 388
S.E.2d 837, 840 (1990). Strict compliance with the requirements of the statute will therefore
raise the presumption of intent to defraud.
Appellant argues that, because the certified letter was returned to Costco, there is no
evidence that appellant received notice of the bad check and, therefore, there can be no
presumption of intent to defraud under Code § 18.2-183. The relevant portion of the statute
reads:
In any prosecution or action under [Code § 18.2-181], the
. . . uttering . . . of a check . . . payment of which is refused by the
drawee because of lack of funds . . . shall be prima facie evidence
of intent to defraud . . . 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. . . .
If such check . . . shows on its face a printed or written address . . .
of the maker . . . then the foregoing notice, when sent by certified
or registered mail to such address, with or without return receipt
requested, shall be deemed sufficient and equivalent to notice
-4-
having been received by the maker or drawer, whether such notice
shall be returned undelivered or not.
(Emphasis added).
The emphasized portion of Code § 18.2-183 grants the Commonwealth prima facie
evidence of an intent to defraud. Accordingly, under the facts of this case, that presumption
arises and actual receipt of the letter need not be shown.2
With that presumption established, the inquiry now becomes whether it has been rebutted
by appellant. See Patterson v. Commonwealth, 216 Va. 306, 308, 218 S.E.2d 435, 436 (1975).
Appellant’s only evidence purporting to rebut the statutory presumption of intent is her
testimony that she believed that she had sufficient funds in her account to cover the check to
Costco. As this Court has stated, “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 [her] guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998). The trial court’s statements demonstrate that precisely such a
determination was made in this case.
The court properly weighed appellant’s statements against the other evidence that Costco
attempted numerous times, by phone and by mail, to contact appellant, both before and after her
move, with no response. The trial court also considered appellant’s prior convictions and their
weight on both the credibility of her statements and on her actions. Finally, the trial court
2
Appellant relies on Sylvestre, 10 Va. App. 253, 391 S.E.2d 336, for the proposition that
actual receipt of notice was required for the presumption to attach. However, Sylvestre can be
distinguished from the instant case on the grounds that, in Sylvestre, the Court found that there
was no notice because the evidence at trial consisted solely of testimony that a letter had been
sent to appellant, with no evidence as to its contents. The Court stated, “The trier of fact could
only speculate what the envelope contained. For the presumption of fraudulent intent to arise,
the requirements of the statute must be met by admissible evidence, not by speculation or
suspicion.” Id. at 258, 391 S.E.2d at 339. In this case, the court did not have to speculate, as the
letter contained in the envelope sent by certified mail was described by the testimony of
Ms. Ingel.
-5-
considered evidence of appellant’s conduct, specifically that she made no efforts to repay the bad
check until after she was served with a warrant, more than four months after she wrote it. The
combined weight of this evidence supports the trial court’s interpretation.
For the above reasons, we find that the trial court’s ruling was not plainly wrong and that
the evidence was sufficient to support it.
Affirmed.
-6-