Hawkins v. Commonwealth ( 2014 )

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.
CHARLES N. HAWKINS
OPINION BY
v. Record No. 131822 SENIOR JUSTICE CHARLES S. RUSSELL
October 31, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider the sufficiency of the evidence
required to support a conviction for possession of counterfeit
currency in violation of Code § 18.2-173.
Facts and Proceedings
Charles N. Hawkins was indicted in the Circuit Court of the
City of Portsmouth for the possession of more than ten forged
bank notes, as described in Code § 18.2-170, with the knowledge
that they were forged and with the intent to utter or employ
them as true. At a bench trial, he was convicted and sentenced
to five years imprisonment, with all but two years and two
months suspended.
At trial, Sergeant Travis Smaglo of the Portsmouth Police
Department testified that on May 14, 2012 he was advised that a
subject who was being sought on several felony arrest warrants
could be found at a pool hall in Portsmouth known as "Big
Daddy's." The subject was described as a man wearing a white
hat and blue checkered shorts who would be standing near the
pool tables. Because the outstanding warrants included charges
for murder and use of a firearm by a convicted felon, Smaglo
went to the pool hall accompanied by several other officers.
Entering the pool hall, Smaglo saw Hawkins standing near a pool
table, wearing a white hat and blue checkered shorts.
Smaglo and another officer approached Hawkins, who put his
right hand into the right pocket of his shorts. Smaglo told
Hawkins to take his hand out of his pocket. Hawkins hesitated.
Smaglo then drew his weapon and ordered Hawkins to remove his
hand from his pocket. Hawkins complied, but when he withdrew
his hand it contained what Smaglo described as a "large sum of
money" that Hawkins threw to the floor. Smaglo re-holstered his
weapon and handcuffed Hawkins.
Smaglo picked up the money he had seen Hawkins throw to the
floor and took it outside, where Hawkins was being held under
arrest. Hawkins' possessions were being collected by the other
officers. Smaglo handed the cash to them and told them it was
also Hawkins' personal property. Hearing this, Hawkins said,
"That's not my money." Smaglo replied, "Well, yes it is. You
threw it on the floor. Why would you not want your money?"
Hawkins continued to insist that the money was not his.
Later, the officers examined the money and concluded that
it was counterfeit. It consisted of 18 twenty-dollar bills.
Among them, the bills shared only four serial numbers: five
bills shared one serial number, six shared a second number, four
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shared a third number, and three bills shared a fourth number.
At trial, the Commonwealth presented expert testimony, including
that of an agent of the United States Secret Service, that the
bills were counterfeit. They were not printed on genuine
currency paper, they lacked the color-shifting ink used on
genuine currency, and they bore "tiny pink, blue and yellow dots
. . . indicative of ink-jet printing."
Hawkins moved to strike the Commonwealth's evidence. The
court denied the motion and heard defense testimony. The court
denied Hawkins' renewed motion to strike and found him guilty as
charged. Hawkins appealed to the Court of Appeals, which
affirmed the conviction in an unpublished opinion. Hawkins v.
Commonwealth, Record No. 2098-12-1, 2013 Va. App. LEXIS 299, at
*8 (Oct. 22, 2013). We awarded Hawkins an appeal.
Analysis
Code § 18.2-173 provides:
If any person have in his possession forged
bank notes or forged or base coin, such as are
mentioned in § 18.2-170, knowing the same to
be forged or base, with the intent to utter or
employ the same as true, or to sell, exchange,
or deliver them, so as to enable any other
person to utter or employ them as true, he
shall, if the number of such notes or coins in
his possession at the same time, be ten or
more, be guilty of a Class 6 felony; and if
the number be less than ten, he shall be
guilty of a Class 3 misdemeanor.
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Hawkins assigns error to the circuit court's denial of his
motions to strike the Commonwealth's evidence and the Court of
Appeals' affirmance of that ruling. He contends that the
Commonwealth failed to prove that he possessed the bills, that
he knew they were forged, or that he had the intent to utter or
employ them as true.
In reviewing the sufficiency of the evidence to support a
conviction, we will affirm the judgment unless it is plainly
wrong or without evidence to support it. Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008); Code
§ 8.01-680. In making this determination, we must examine the
evidence that supports the conviction in the light most
favorable to the Commonwealth, allowing it the benefit of all
reasonable inferences that may be drawn from the evidence.
Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735
(2011).
Sergeant Smaglo testified that he watched while Hawkins, at
gunpoint, removed his right hand from his pocket, that Hawkins'
hand held the money in question, and that Hawkins threw the
money to the floor. The trial judge, as trier of fact, found
that testimony to be credible. That alone is sufficient to
support a finding that Hawkins possessed the bills.
The circuit court could also draw the reasonable inference,
from Hawkins' guilty behavior, that he knew the bills to be
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counterfeit. Guilty knowledge must often be shown by
circumstantial evidence. Circumstances tending to prove guilty
knowledge include the defendant's acts, statements, and conduct.
Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310
(2008). Such conduct may serve as evidence that the defendant
knew the nature and character of the contraband that was in his
possession. Id. The court could reasonably infer Hawkins'
guilty knowledge from his furtive behavior when the police
approached him. When Smaglo asked him to take his right hand
out of his pocket, he hesitated. Smaglo then had to order him
at gunpoint to remove his hand from his pocket. Hawkins only
then complied, but in doing so, removed the bills from his
pocket and threw them to the floor of the pool hall.
Thereafter, he repeatedly denied that the bills were his.
A false account, similar to flight from a crime scene, is a
circumstance a fact-finder may properly consider as evidence of
guilty knowledge. Covil v. Commonwealth, 268 Va. 692, 696, 604
S.E.2d 79, 82 (2004). "Probably the strongest evidence of
guilty knowledge is an attempt to abandon counterfeit currency
when detection is feared." Ruiz v. United States, 374 F.2d 619,
620 (5th Cir. 1967); see also United States v. King, 326 F.2d
415, 416 (6th Cir. 1964) (throwing counterfeit money to the
floor cognizable in the circumstances showing knowledge and
intent). These circumstances were more than sufficient to
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support an inference that Hawkins knew the bills to be
counterfeit.
Hawkins finally argues that the Commonwealth failed to
prove that he possessed the bills with intent to utter or employ
them as true. "Utter" in this context "is 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). Intent may be inferred from the facts and circumstances
of the case and shown by the acts of the defendant. Wilson v.
Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995).
The federal statute applicable to the possession of
counterfeit currency, 18 U.S.C. § 472, contains a similar
element of intent to utter, and federal cases applying it are
therefore helpful. See, e.g., Andrews v. Browne, 276 Va. 141,
147-48, 662 S.E.2d 58, 62 (2008) (observing that where Virginia
and federal statutes regulating the same subject share common
definition of statutory term, "it is appropriate to look to the
federal courts' interpretation of the same term" when construing
the Virginia statute). Those cases hold that several
circumstances will support a finding of the requisite intent.
Among those are: possession of a large number of counterfeit
bills, United States v. Berrios, 443 F. Supp. 408, 410 (E.D. Pa.
1978); taking counterfeit bills to a commercial establishment,
where cash transactions are likely, see United States v.
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Mitchell, 176 Fed. Appx. 676 (7th Cir. 2006); and segregating
counterfeit bills from genuine currency. United States v.
Perez, 698 F.2d 1168, 1171 (11th Cir. 1983) (keeping counterfeit
currency in a separate pocket).
The Commonwealth's evidence established each of these
circumstances. Hawkins was shown to possess counterfeit
currency having a facial value of $360, in 18 twenty-dollar
bills. He had taken it to a pool hall, where frequent cash
transactions could be anticipated. The record is silent as to
whether Hawkins had any genuine currency with him when he was
arrested, but if he did it was obviously segregated from the
counterfeit bills he threw to the floor. We hold these
circumstances sufficient to support an inference that Hawkins
had the requisite intent to utter the counterfeit money in his
possession.
Hawkins makes the ingenious additional argument that if he
brought counterfeit bills to the pool hall to pay gambling debts
or to purchase drugs or other contraband, he would have lacked
the intent to employ them as true, as contemplated by Code
§ 18.2-173. This, he contends, is a reasonable hypothesis of
innocence that the Commonwealth's evidence failed to exclude.
We do not agree.
Although federal counterfeiting laws have as their primary
purpose the protection of the national currency, state laws on
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the same subject are aimed primarily at protecting their
citizens from thefts and forgeries. Hendrick v. Commonwealth,
32 Va. (5 Leigh) 707, 713 (1834); Brooks v. United States, 76
F.2d 871, 872 (1935). When counterfeit currency is put into
circulation, even if originally for an illegal purpose, someone
will ultimately be defrauded by its use. United States v.
Hagan, 487 F.2d 897, 898 (5th Cir. 1973).
Conclusion
For the reasons stated, we hold that the circuit court
correctly denied the motions to strike the Commonwealth's
evidence and that the Court of Appeals did not err in affirming
the conviction. We will affirm the judgment of the Court of
Appeals.
Affirmed.
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