Mccain v. Commonwealth Of Va., Record No. 0536-09-1
| Decision Date | 12 October 2010 |
| Docket Number | Record No. 0536-09-1 |
| Court | Virginia Court of Appeals |
| Parties | KENNETH TYRONE McCAIN v. COMMONWEALTH OF VIRGINIA |
Present: Judges Elder, Humphreys and Senior Judge Coleman Argued by teleconference
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Jack A. Thornton, III, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Kenneth Tyrone McCain (appellant) challenges the sufficiency of the evidence supporting his convictions for forgery and uttering, both in violation of Code § 18.2-172. On appeal, he argues the evidence does not support 1) the conviction for forgery because the negotiable instrument did not contain a valid signature; and 2) the conviction for uttering because appellant made no fraudulent assertion of his identity. Because the evidence sufficiently supports the jury's findings of guilt on both counts, we affirm appellant's convictions.
Appellant challenges the sufficiency of the evidence supporting his convictions for forgery and uttering. "When examining a challenge to the sufficiency of the evidence, an appellate court must review the evidence in the light most favorable to the prevailing party attrial and consider any reasonable inferences from the facts proved." Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). We may reverse "a jury's verdict only when the ruling is plainly wrong or without evidence to support it." Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 704 (2006).
Appellant contends the crime of forgery cannot be committed without a signature. Appellant reasons that signing the check with an apparent social security number rendered the check invalid on its face and, therefore, not the subject of a forgery. Relying on statutory construction principles, appellant cites to Code §§ 8.3A-103 and-104 to support his contention that the requirements for a valid negotiable instrument contained therein trump the statutory requirements for forgery under Code § 18.2-172. We disagree.
A person is criminally liable under Code § 18.2-172 if he "forge[s] any writing,... to the prejudice of another's right, or utter[s], or attempt[s] to employ as true, such forged writing, knowing it to be forged." Forgery "is defined as 'the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.'" Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 264 (1964)). "[A]n instrument is one of legal efficacy, within the rules relating to forgery, where by any possibility it may operate to the injury of another." Gordon v. Commonwealth, 100 Va. 825, 829, 41 S.E. 746, 748 (1902). However, an instrument that is facially invalid cannot be the subject of a forgery. See Terry v. Commonwealth, 87 Va. 672, 674, 13 S.E. 104, 105 (1891).
We reject appellant's argument that a check must strictly follow the requirements of a negotiable instrument under Code § 8.3A-1041 in order for it to be the subject of a forgery. Virginia jurisprudence makes clear that "[i]t is immaterial... whether the paper in question was or was not a valid negotiable instrument." Gordon, 100 Va. at 830, 41 S.E. at 748. In other words, a technical deficiency in the instrument itself does not automatically render the evidence insufficient to support a conviction for forgery as a matter of law. See Hanbury v. Commonwealth, 203 Va. 182, 186-87, 122 S.E.2d 911, 914 (1961) (); Muhammed v. Commonwealth, 13 Va. App. 194, 197, 409 S.E.2d 818, 820 (1991) (). Rather, the controlling inquiry is whether "'the resemblance to the genuine instrument is sufficiently close that there is a bare possibility ofimposing the instrument on another as genuine.'" Muhammad, 13 Va. App. at 199, 409 S.E.2d at 821 (quoting 36 Am. Jur. 2d Forgery § 21 (1968)).
In Muhammad, this Court recognized that "[n]o definition of forgery can be comprehensive enough to include all the crimes that may be committed by simple use of pen, paper, and ink." Id at 198, 409 S.E.2d at 821. There, the forged check contained the true owner's name and address imprinted at the top left corner. The defendant's name and address appeared on the front as the payee, and the back of the check contained a handwritten endorsement showing appellant's name and address. However, the line on which the drawer's signature normally appears did not contain a signature. We held that this deficiency did not render the instrument "'so defective on its face that, as a matter of law, it is not capable of defrauding anyone.'" Id. at 199, 409 S.E.2d at 821 (quoting Mayes v. State, 571 S.W.2d 420, 427 (Ark. 1978)). Rather, we stated that "a form company check bearing its name and address clearly printed on the face thereof, appearing to be payable[,]... duly endorsed by the named payee and presented for payment, clearly has apparent legal efficacy." Id.
Here, appellant paid for several items using a check that belonged to John Hatch and received cash back for the remaining balance. This purported forged check is similar to the forged check in Muhammad. Appellant made the check payable to Food Lion as payment for the goods, the check contained Hatch's name and address imprinted on the top left corner, and appellant transferred title to the instrument by endorsing the signature line with what appeared to be a social security number.2 By endorsing the check with a unique identifying mark, appellant warranted that he had good title to the instrument and that it had not been materially altered. See Code § 8.3A-417. Appellant's tendering of the check indisputably operated to the prejudice of Hatch's rights because his actions depleted Hatch's funds to such an extent that the account was overdrawn. Further, Hatch had not authorized appellant to use his checkbook to make any purchases or receive cash back.3 The record further demonstrates the check's apparent legal efficacy in that the cashier actually validated the check after "look[ing] over the numbers to make sure that the amount was right and that it was to Food Lion." See Hanbury, 203 Va. at 187, 122 S.E.2d at 915 (). Accordingly, we hold the check was of sufficient apparent legal efficacy to support the jury's finding that appellant was guilty of forgery.
Appellant argues the evidence is insufficient to support his conviction for uttering because he did not identify himself when he tendered the check as payment. Thus, appellant contends he did not "ma[k]e [an] independent attempt to defraud." Referring to his first assignment of error, appellant further avers "that in order to be convicted of uttering, the writing that is the basis for the conviction must, in fact, be a forgery." Brown v. Commonwealth, 56 Va. App. 178, 188, 692 S.E.2d 271, 276 (2010).
"Uttering, a separate and distinct offense [from forgery] is 'an assertion by word or action that a writing known to be forged is good and valid.'" Oliver v. Commonwealth, 35 Va. App. 286, 295, 544 S.E.2d 870, 874-75 (2001) (quoting Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964)). Unlike forgery, "the crime of uttering does not require proofthat the defendant produced or altered a writing." Bennett v. Commonwealth, 48 Va. App. 354, 357, 631 S.E.2d 332, 333 (2006). Rather, '"any assertion or declaration, by word or act, directly or indirectly, that the forged writing or endorsement is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing or endorsement....'" Id ...
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