Moore v. Commonwealth

• Decision Date: 20 March 2012
• Docket Number: Record No. 1926–10–4.
• Parties: Cynthia Dawn MOORE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 795

722 S.E.2d 668

Cynthia Dawn MOORE

v.COMMONWEALTH of Virginia.

Record No. 1926–10–4.

Court of Appeals of Virginia, Alexandria.

March 20, 2012.

Vanessa R. Jordan, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY and ALSTON, JJ.

HUMPHREYS, Judge.

Cynthia Dawn Moore (“Moore”) appeals her convictions by a jury in the Circuit Court for the County of Stafford (“trial court”) of three counts of worthless checks under Code § 18.2–181, three counts of obtaining money by false pretenses under Code § 18.2–178, and three counts of uttering a forged writing under Code § 18.2–172. On appeal, Moore contends that the trial court erred by (1) denying her motion to strike two of the three obtaining money by false pretenses charges pursuant to the single larceny doctrine where Moore simultaneously deposited three money orders, (2) granting the Commonwealth's motion to nolle prosequi the issuing multiple worthless checks indictment and prosecute Moore under three separate indictments of Code § 18.2–181 where the evidence showed that she simultaneously deposited three money orders, (3) failing to strike two of the three worthless check charges pursuant to the single larceny doctrine where Moore simultaneously deposited three money orders, and (4) denying Moore's motion to strike two of the three uttering charges pursuant to the single larceny doctrine where Moore simultaneously presented three money orders.

I. Background

On May 4, 2009, a Stafford County grand jury indicted Moore for one count of issuing multiple worthless checks under Code § 18.2–181.1 and three counts of worthless checks under Code § 18.2–181. Subsequently, on February 1, 2010, the grand jury indicted Moore for three counts of false pretenses under Code § 18.2–178, three counts of uttering a forged note under Code § 18.2–170, three counts of forgery of a note under Code § 18.2–170, three counts of uttering a forged writing under Code § 18.2–172, three counts of forgery of a writing under Code § 18.2–172, and three counts of third offense larceny under Code § 18.2–104. All of the charges brought against Moore in the indictments related to her deposit of three counterfeit “Lucky MoneyGram” money orders in her checking account at Apple Federal Credit Union (“Apple”) and her subsequent withdrawal of their balances. All of the indictments were set to be tried together.

Immediately prior to jury selection, the Commonwealth made a motion to nolle prosequi¹ the three indictments for third offense larceny, the three indictments for uttering a forged note, and the three indictments for forgery of a note prior to putting on its case-in-chief. The trial court granted the motion.

During a recess in the trial, the Commonwealth moved to nolle prosequi the indictment for issuing multiple worthless checks. The attorney for the Commonwealth provided no explanation for his request to nolle prosequi the multiple worthless checks indictment, and the trial court requested none. Moore objected to the motion on the theory that the legislature enacted the offense of issuing multiple worthless checks to eliminate multiple prosecutions of worthless check offenses. The trial court granted the motion over Moore's objection.

During its case-in-chief, the Commonwealth called Phillip Hannum (“Hannum”), the security manager at Apple, to testify. Hannum testified that he received three “Lucky MoneyGram” money orders that were returned from the Federal Reserve as counterfeit. The money orders were made payable to Cynthia Moore and listed “Don King” as the purchaser. They also listed the address 1402 Aquia Rd. From the markings on the money orders, Hannum deduced that they were deposited in the “Doc Store Court” branch on February 14, 2009. Hannum was able to use the time and date of the deposits to retrieve security footage from the “Doc Store Court” Apple branch and identified Moore in a still image taken from the footage.

Apple's collection department sent Moore a letter via certified mail regarding the money orders. The letter was sent to the 1402 Aquia Road address. Hannum testified that the purpose of the letter is to give Apple members ² five days to “make things good.” However, Apple never received a signed return receipt for the letter. Hannum then personally sent Moore an email on March 4th. Moore called Hannum on March 10th in response to the email. She informed Hannum that she had used the money to pay bills and that she deserved a break, because she had just gotten back from a “lunatic asylum.” She also added that she would not be paying any of the money back.

Moore indicated to Hannum that she had gotten a job online. However, she was unable to identify her hiring officer, the name of her employer, a way to contact her employer, or the date she was hired.

The Commonwealth also introduced a transaction summary for Moore's account and copies of withdrawal receipts signed by Moore. Moore's account showed a balance of $5.12 before the three money orders were deposited. At the time she deposited the money orders, Moore withdrew $100 against their balance. In the seven days following her deposit, she made withdrawals as follows:

+-------------------------------+
                ¦       ¦          ¦Withdrawal  ¦
                +-------+----------+------------¦
                ¦Date   ¦Time      ¦Amount      ¦
                +-------+----------+------------¦
                ¦2/19/09¦5:23 p.m. ¦$ 64.00     ¦
                +-------+----------+------------¦
                ¦2/19/09¦5:27 p.m. ¦$1,194.00   ¦
                +-------+----------+------------¦
                ¦2/20/09¦9:46 a.m. ¦$ 40.00     ¦
                +-------+----------+------------¦
                ¦2/20/09¦4:44 p.m. ¦$ 220.00    ¦
                +-------+----------+------------¦
                ¦2/21/09¦8:58 a.m. ¦$ 600.00    ¦
                +-------+----------+------------¦
                ¦2/21/09¦8:59 a.m. ¦$ 165.00    ¦
                +-------------------------------+
                

Hannum testified that Moore had not paid any of the money back at the time of the trial.

James Harris (“Harris”), a law enforcement officer with the Stafford County Sheriff's Department, testified that he talked with Moore in her kitchen on March 17th and that Moore told him that she received the money orders from “Don King” in a UPS envelope. Moore told Harris that she had “filled out an application to Google.” Moore explained to Harris that the job was not with the company Google, but rather to “ ‘google’ things, play online games, and other things of that nature.” Moore said that she was working for Publisher's Clearinghouse and that she had been employed for about a month.

Moore then informed Harris that she had spent some of the money paying off fines, $640 to buy a vehicle, and the rest on “little stuff here and there.” Moore indicated that she was willing to repay the money, but that she had not done so yet.

Moore testified on her own behalf at trial. She testified that she lived at her father's house at 1402 Aquia Road off and on. At night, she would surf the web after her father went to bed. One night, a pop-up appeared that said you can earn money from home. Moore clicked the pop-up and more things would appear, so she clicked them too. She testified that, “if you play a certain amount of games, like pogo or Iwon.com and if you spend a certain amount of time on there playing their games, they'll, like, send you a check.”

Moore admitted that she used the money obtained from depositing the money orders to buy a car and pay off fines. Moore also admitted that she had been convicted of a crime involving lying, cheating, or stealing in the past.

The jury found Moore guilty of three counts of uttering a worthless check under Code § 18.2–181, three counts of obtaining money by false pretenses under Code § 18.2–178, and three counts of uttering a forged writing under Code § 18.2–172. She now appeals to this Court.

II. False Pretenses

Moore's first assignment of error alleges that the trial court erred in denying her motion to strike two of the three obtaining money by false pretenses charges pursuant to the single larceny doctrine, because she simultaneously deposited all three money orders. The Commonwealth argues that Moore's motion to strike the evidence on these charges lacked sufficient specificity to preserve this issue for appellate review. However, even if we assume without deciding that Moore's inartful objection properly preserved this point for our consideration, we nevertheless affirm the trial court on this issue.³

When the sufficiency of the evidence is challenged on appeal, “ ‘[a]n appellate court must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom.’ ” Acey v. Commonwealth, 29 Va.App. 240, 244–45, 511 S.E.2d 429, 431 (1999) (quoting Lea v. Commonwealth, 16 Va.App. 300, 303, 429 S.E.2d 477, 479 (1993)). Further, “[t]he trial court's judgment will not be set aside unless it appears that the judgment is plainly wrong or without supporting evidence.” ⁴ Shropshire v. Commonwealth, 40 Va.App. 34, 38, 577 S.E.2d 521, 523 (2003).

The premise of the single larceny doctrine is that “[a] series of larcenous acts will be considered a single count of larceny if they ‘are done pursuant to a single impulse and in execution of a general fraudulent scheme.’ ” Acey, 29 Va.App. at 247, 511 S.E.2d at 432 (quoting West v. Commonwealth, 125 Va. 747, 754, 99 S.E. 654, 656 (1919)). The application of the doctrine is a fact specific analysis. When deciding whether the single larceny doctrine applies to a particular case, a court must consider “(1) the location of the items taken, (2) the lapse of time between the takings, (3) the general and specific intent of the taker, (4) the number of owners of the items taken and (5) whether intervening events occurred between the takings.” Id. However, “ ‘[t]he primary factor to be...