Walker v. Com.

• Decision Date: 17 June 1997
• Docket Number: No. 2948-95-2,2948-95-2
• Citation: 486 S.E.2d 126,25 Va.App. 50
• Parties: Robert Mack WALKER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 126

486 S.E.2d 126

25 Va.App. 50

Robert Mack WALKER v. COMMONWEALTH of Virginia.

Record No. 2948-95-2.

Court of Appeals of Virginia Richmond.

June 17, 1997.

Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, ANNUNZIATA and OVERTON, JJ.

OVERTON, Judge.

Robert Mack Walker was convicted by a jury of forgery, uttering, grand larceny, and two counts of robbery. He appeals, claiming that (1) the evidence is insufficient to support the convictions for forgery, uttering, grand larceny, and robbery; and (2) he should have been granted a proffered instruction informing the jury that parole has been abolished in Virginia.

I. Facts

On August 7, 1995, just before midnight, Mary Person and her aunt were stopped at a Race Trac Gas Station off Midlothian Turnpike in southside Richmond. When Person was getting back into her car and about to shut the door, the door flew open. A man later identified by Person as Robert Mack Walker threw his shoulder into hers and pushed her over. Walker drew a knife and put it in Person's side and asked for all of her money. Person threw her pocketbook and her aunt's pocketbook at Walker. When another motorist drove up, Walker fled with Person's wallet.

The next day Walker presented two of the checks stolen from Person's purse to two tellers at separate First Virginia Bank branches. For the first he received $300; the other was refused. He was subsequently indicted for two counts of forgery, two counts of uttering, one count of grand larceny, and two counts of robbery.

At trial, Person testified that her checkbook had been in her wallet. She identified checks numbered 525 and 526 as coming from the stolen checkbook, and she stated that the signature on the checks was not hers. Person later identified Walker from a photospread.

Lisa Cooper, a teller at First Virginia Bank, testified that she handled check 526 on August 8, 1995, the day after the robbery, made out to Robert Walker. She identified the teller stamp and her handwriting on the back. She testified that the identification card she examined bore the photograph of the same man who cashed the check. The information that she copied from the identification card matched the personal information from Walker's identification card. Six photos from the bank's security camera corroborated Walker's presence at the bank at the time.

James Carter, a teller at another First Virginia Branch, also testified that Walker gave him a check on August 8, 1995. He copied Walker's personal information from Walker's identification onto the back of the check. He also checked whether the person presenting the check was the same person as the identification card represented. When Carter was handed the check to identify at trial, both he and the Commonwealth's attorney called it check 526, the same number as the check that Cooper had identified. Both checks 525 and 526 were admitted into evidence.

Walker testified on his own behalf. He stated that he had been at the gas station at approximately the time of the robbery. He also admitted receiving one of the checks from an acquaintance on August 8, 1995. Walker testified that he had done some painting for a woman named Elaine, and he thought the check was in return for that work, the E. in Mary E. Person standing for Elaine. He took the check to the first bank and cashed it. He denied receiving the second check and denied ever going to the second branch.

At the close of the Commonwealth's evidence, defendant moved to strike because of the discrepancy in the check numbers. Defendant argued that check 526 was identified by both tellers as the check they handled. The court agreed that the Commonwealth's attorney handed one of the witnesses the wrong check, but overruled the motion to strike. The defendant renewed his motion at the close of all evidence and was again overruled. The jury found the defendant guilty on all counts.

Before the jury deliberated on sentencing, the defendant offered a jury instruction stating that the Commonwealth of Virginia has abolished parole for all felonies that were committed after January 1, 1995. The judge ruled that, because this was not a capital murder case, he was refusing the instruction. The jury fixed Walker's sentence at ten years for each robbery count, two years for each forgery count, six months on each uttering count, and one year for the grand larceny.

At the sentencing, Walker rearticulated the argument for the previous motion to strike and moved to set aside the verdict. He argued that both tellers identified the same check and that therefore all the convictions should be set aside. The judge agreed that evidence was lacking on one check, although he was not sure which. He refused to set aside the convictions on both checks, stating that "one of them was obvious" and that the Commonwealth merely "made a mistake on the check and gave the witness the wrong check." He did set aside the forgery and uttering convictions on check number 526.

II. Sufficiency of the Evidence

A.

We hold that the evidence is sufficient to support the convictions for forgery, uttering, and grand larceny. "Larceny is defined as the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently." Jones v. Commonwealth, 3 Va.App. 295, 300, 349 S.E.2d 414, 417 (1986). If the goods are valued at $200 or more, the offense is grand larceny. See Code § 18.2-95. Walker admitted receiving $300 from the bank in return for one of the forged checks. The evidence is sufficient for a jury to conclude that Walker fraudulently induced the bank to give him this money and that he did not intend to return it. All of the elements of grand larceny having been established, we affirm this conviction.

All of the elements of forgery are also established. "Forgery is 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." Moore v. Commonwealth, 207 Va. 838, 841, 153 S.E.2d 231, 233 (1967); Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964). Person testified that the signature on the checks was not her own. By presenting the checks to the bank tellers, Walker demonstrated a clear intent to defraud. The checks were therefore forged. The evidence does not prove conclusively that Walker himself signed Person's name on the checks, but such proof is not required. "Possession of a forged check by an accused, which he claims as a payee, is prima facie evidence that he either forged the instrument or procured it to be forged." Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395 (1984). Walker admitted the possession of one of the two forged checks in evidence, whether number 525 or number 526. The jury was therefore entitled to believe beyond a reasonable doubt that Walker either forged the check or procured it to be forged. The record supports a conviction for forgery.

Uttering is an offense separate from forgery. See Bateman v. Commonwealth, 205 Va. 595, 599, 139 S.E.2d 102, 105 (1964); Johnson v. Commonwealth, 102 Va. 927, 929, 46 S.E. 789, 790 (1904). "The word 'utter' is defined in Black's Law Dictionary, 4th ed., page 1716, as meaning 'To put or send [as a forged check] into circulation. * * * to utter and publish.' It is an assertion by word or action that a writing known to be forged is good and valid." Bateman, 205 Va. at 599-600, 139 S.E.2d at 106 (alteration in original). Walker's possession of the forged check allows the inference that Walker knew it to be forged. Walker clearly put this forged check into circulation, as evidenced by, inter alia, his presence at the bank captured on a bank security camera and his own admission. The fact that the two check numbers were confused at trial does not alter this fact. The conviction for uttering is affirmed.

B.

Walker attacks his robbery convictions on the ground that Person's identification was incredible. Person's testimony is clearly not incredible. She chose him from a lineup, and her identification was later verified by the fact that Walker admitted his presence at the gas station and was found in possession of her checks the next morning. The credibility of the witness and the weight accorded her testimony "are matters solely for the fact finder, who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 1995); see Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

Furthermore, sufficient evidence was present to prove that Walker was the robber, even without the eyewitness identification. The jury rejected the defendant's explanation for his possession of the check, and in doing so inferred his consciousness of guilt from that lie. See Welch v. Commonwealth, 15 Va.App. 518, 525, 425 S.E.2d 101, 106 (1992). "A defendant's false statements are probative to show he is trying to conceal his guilt, and thus is evidence of his guilt." Rollston v. Commonwealth, 11 Va.App. 535, 548, 399 S.E.2d 823, 831 (1991) (citing Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). Accordingly, the robbery convictions are affirmed.

III. Jury Instruction

Walker next argues that the trial judge erred by refusing an instruction informing the jury that Walker was ineligible for parole under Virginia law. The proffered instruction read:

The Commonwealth of Virginia has abolished parole for all felonies that were committed after January 1, 1995. ¹

The trial judge ruled that because this was not a capital case, he would not instruct the jury about parole considerations, adding, "It is none of...