Coles v. Commonwealth, Record No. 0624-08-2 (Va. App. 10/27/2009)

Decision Date27 October 2009
Docket NumberRecord No. 0624-08-2
CourtVirginia Court of Appeals
PartiesFRED WATKINS COLES, JR. v. COMMONWEALTH OF VIRGINIA.

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FRED WATKINS COLES, JR.
v.
COMMONWEALTH OF VIRGINIA.
Record No. 0624-08-2
Court of Appeals of Virginia, Richmond.
October 27, 2009.

Appeal from the Circuit Court of the City of Petersburg. James F. D'Alton, Jr., Judge.

Joseph A. Sadighian, Senior Assistant Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.

Gregory W. Franklin, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges Elder, Alston and Senior Judge Clements.

MEMORANDUM OPINION*

JUDGE LARRY G. ELDER.


Fred Watkins Coles, Jr. (appellant) appeals his bench trial convictions for uttering a forged check in violation of Code § 18.2-1721 and attempted grand larceny in violation of Code §§ 18.2-95 and -26. On appeal, he argues that the evidence was insufficient to support his convictions. Appellant further argues that it would violate his due process rights under the Fourteenth Amendment to infer his guilty knowledge solely from the fact that he possessed the forged check.

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Because the evidence supports the permissive inference that appellant knew the instrument was forged, we affirm his convictions, subject to remand solely for correction of a clerical error.

I.
ANALYSIS
A.
SUFFICIENCY OF THE EVIDENCE

When a defendant contests the sufficiency of the evidence on appeal, we must give the judgment of the trial court sitting without a jury the same weight as a jury verdict. McCain v. Commonwealth, 261 Va. 483, 492, 545 S.E.2d 541, 547 (2001). To that extent, we consider the evidence in the light most favorable to the Commonwealth, the prevailing party below. See Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007). "We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). The appellate court must review the evidence that tends to support the conviction and uphold the trial court's judgment unless it is plainly wrong or without evidence to support it. Commonwealth v. Duncan, 267 Va. 377, 384, 593 S.E.2d 210, 214 (2004).

Code § 18.2-172 makes it illegal to "forge any writing . . . to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged . . . ." The crime of uttering is complete upon "an assertion by word or action that a writing known to be forged is good and valid." Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964). Knowledge of the instrument's forgery is an essential element of the crime and may be proven with circumstantial evidence. See Harris v. Commonwealth, 211 Va. 742, 743, 180 S.E.2d 520, 522 (1971); Bullock v. Commonwealth, 205 Va. 558, 562-63, 138 S.E.2d 261, 264 (1964).

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When the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the circumstances proved create a suspicion of guilt, however strong, or even a probability of guilt. Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). "Circumstantial evidence is not viewed in isolation. `While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Id. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)).

There is no requirement that the accused must fully negotiate a forged document in order to be convicted of uttering. See Bennett v. Commonwealth, 48 Va. App. 354, 358, 631 S.E.2d 332, 333-34 (2006) (eschewing an interpretation of uttering that requires "a forged document [to] be negotiated" in favor of a rule that the accused need only "institute[] the process that produce[s] the fraud[]"). Rather, the Commonwealth must prove that the accused "employ[ed] as true[] such forged writing." Code § 18.2-172.

In this case, the evidence is sufficient to show that appellant initiated the process to employ a forged check as true. Appellant entered the Bank of Southside Virginia (the bank) on July 12, 2007, and gave a check to a teller, purportedly drawn from the account of Pamplin Historical Park (Pamplin Park). The allegedly valid instrument appeared to be an official check from Pamplin Park made payable to appellant in the amount of $1,977.65. Appellant's name and address were typed on the check, and it was dated July 10, 2007. The back of the check bore appellant's signature; underneath it was a driver's license number. Appellant later confirmed to the police that the signature was his. This endorsement of the check supports the inference that appellant brought the check to the bank for the purpose of drawing cash as the purported payee.

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See Code § 8.3A-109 ("An instrument payable to an identified person may become payable to bearer if it is endorsed in blank pursuant to § 8.3A-205(b).").

The evidence further proves that appellant knew the Pamplin Park check to be forged. In Fitzgerald v. Commonwealth, 227 Va. 171, 313 S.E.2d 394 (1984), the Court upheld the defendant's conviction for forgery,2 holding that "`[p]ossession of a forged check by an accused, which he claims as payee, is prima facie evidence that he either forged the instrument or procured it to be forged.'" Id. at 174, 313 S.E.2d at 395 (quoting Laird v. State, 406 So. 2d 35, 36 (Miss. 1981)). Subsequent decisions in Virginia have extended this principle to the crime of uttering so that "possession of the forged check allows the inference that [the accused] knew it to be forged." Walker v. Commonwealth, 25 Va. App. 50, 59, 486 S.E.2d 126, 131 (1997).

Appellant had in his possession a check that the Commonwealth proved was a forgery. Allison Wade, an associate manager at the bank, recognized several inconsistencies between appellant's check and previous checks from the Pamplin Park account. When the police arrived to investigate, appellant told the officers that he received the check from a man named Mr. Scott who was waiting outside in a van with North Carolina license plates. Approximately 20 minutes after receiving this statement, the officers canvassed the nearby parking lots, but were unable to locate a vehicle matching the description appellant had provided.

Patrick Olienyk, the executive vice-president and chief operating officer of Pamplin Park, testified in his capacity as custodian of the company's checking accounts. Olienyk identified a copy of an authentic Pamplin Park check used in the normal course of business and testified that

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the check presented by appellant was not a legitimate Pamplin Park check. The counterfeit check appellant presented to Wilson listed Pamplin Park's account number and contained check number 20479. The legitimate check with the same number was issued to U.S. Food Service for $7,846.02 on July 17, 2007, five days after appellant presented his check.

The discrepancies between the standard Pamplin Park check and the check appellant had in his possession, coupled with Olienyk's submission of the account number of a legitimate Pamplin Park check matching the account number on appellant's check, allow the inference that appellant knew the check was forged. Moreover, this inference is strengthened by additional...

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