Levar Donnie Richardson v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Powell and Alston
Argued at Richmond, Virginia
LEVAR DONNIE RICHARDSON
MEMORANDUM OPINION * BY
v. Record No. 0531-09-1 JUDGE ROSSIE D. ALSTON, JR.
MARCH 9, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Gregory K. Matthews (Brenda C. Spry; Office of the Public
Defender, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General II (William C.
Mims, Attorney General, on brief), for appellee.
Levar Donnie Richardson (appellant) appeals from his convictions for uttering, in
violation of Code § 18.2-170, and obtaining and attempting to obtain money by false pretenses,
in violation of Code §§ 18.2-178 and 18.2-26. On appeal, appellant contends the evidence was
insufficient to find him guilty of these offenses because the Commonwealth failed to prove
appellant knew the instruments he possessed were forged. For the reasons that follow, we hold
the evidence was sufficient, and we affirm appellant’s convictions.
I. BACKGROUND 1
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of this appeal.
Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the record through this
evidentiary prism requires us to ‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.’” Cooper v. Commonwealth, 54 Va. App. 558, 562,
680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d
755, 759 (1980) (emphasis omitted)).
So viewed, the evidence showed that on December 24, 2007, appellant entered an
Alcohol Beverage Control store (ABC store) on George Washington Highway in Portsmouth.
Appellant purchased a $19.43 bottle of vodka with a $100 American Express Traveler’s Cheque
and received $80.57 in change. Appellant remained in the store for a few minutes, and then
purchased another $19.43 bottle of vodka with a second $100 traveler’s check, again receiving
$80.57 in change. During both transactions, appellant signed his own name to the check,
presented his identification, and acted in a cordial and polite manner.
On December 27, 2007, appellant entered an ABC store on Victory Boulevard in
Portsmouth. Appellant attempted to purchase a bottle of alcohol with a $100 American Express
Traveler’s Cheque; however, the store manager refused to accept the check because it was not
endorsed on the top signature line. Appellant took the check and left the store. At some point
the same day, appellant returned to the George Washington Highway ABC store, this time
negotiating a traveler’s check in exchange for a bottle of vodka and $89.03 in change. Again,
appellant signed his own name to the check, presented his identification, and was cordial and
polite.
Based on appellant’s negotiating several large traveler’s checks within a few days, the
assistant manager at the George Washington ABC store, Pamela Anstead (Anstead), contacted
American Express. American Express informed Anstead that the checks were counterfeit.
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On January 10, 2008, appellant returned to the George Washington Highway ABC store
and attempted to purchase a bottle of alcohol with another American Express Traveler’s Cheque.
Anstead informed appellant that she could not accept the check without verifying it with
American Express. Anstead then took the check and appellant’s driver’s license to a back room,
and appellant briefly left the store. When appellant returned, he asked if everything was “good”
with the check. Anstead said she was unable to determine the validity of the check, but she
would try again. Appellant requested that she return his driver’s license, which Anstead did.
Anstead then went to the back room of the store with the check. Appellant waited briefly, but
before Anstead returned, appellant left the store and abandoned the check.
Appellant was arrested and charged with four counts of forgery, four counts of uttering,
one count of obtaining money by false pretenses, and one count of attempting to obtain money
by false pretenses.
At trial, the Commonwealth presented evidence from Special Agent David Huff (Huff) of
the Virginia ABC Board and Senior Special Agent John Golbreski (Golbreski) for American
Express. Huff testified that appellant voluntarily spoke with him after the incidents. According
to Huff, appellant initially informed him that he found the checks in a leather pouch behind a
convenience store. Appellant did not deny using the checks at the ABC stores.
Golbreski testified that all the checks at issue were counterfeit. He further testified that
traveler’s checks have two signature lines, which must both be signed before the check can be
properly negotiated. 2 Golbreski testified that it is highly unusual for a purchaser to use the
checks without first signing the top signature line, as appellant attempted to do on at least one
2
“‘Traveler’s check’ means an instrument that (i) is payable on demand, (ii) is drawn on
or payable at or through a bank, (iii) is designated by the term ‘traveler’s check’ or by a
substantially similar term, and (iv) requires, as a condition to payment, a countersignature by a
person whose specimen signature appears on the instrument.” Code § 8.3A-104(i).
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occasion, because underneath that line the checks instruct the purchaser, “[s]ign here
immediately upon receipt of this traveler’s cheque.”
At the close of the Commonwealth’s case-in-chief, appellant moved to strike the
evidence, arguing the Commonwealth failed to prove appellant had the requisite intent to defraud
because the evidence did not show he knew the checks were forged. The trial court overruled
appellant’s motion.
Appellant then presented evidence that he acquired the checks from his stepdaughter
(S.G.). Both S.G. and her mother testified that S.G. received the checks from her biological
father in New York and that S.G. gave the checks to appellant. 3
At the close of all the evidence, appellant renewed his motion to strike the evidence. The
court overruled appellant’s renewed motion, and the jury found appellant guilty of four counts of
uttering, one count of obtaining money by false pretenses, and one count of attempting to obtain
money by false pretenses. The jury found appellant not guilty of four counts of forgery. On
March 4, 2009, the trial court entered a final order in accordance with the jury’s verdict.
Appellant timely filed this appeal.
II. ANALYSIS
Appellant contends the evidence was insufficient to convict him of uttering and obtaining
money by false pretenses because the Commonwealth did not prove, beyond a reasonable doubt,
that appellant knew the checks were forged. 4 Appellant argues the Commonwealth relied on
3
As noted, this evidence was inconsistent with appellant’s previous position that he
found the checks behind a convenience store.
4
Appellant’s challenge to the sufficiency of the evidence for both uttering and obtaining
money by false pretenses is the same – that the Commonwealth did not prove appellant’s
fraudulent intent. Thus, we address the sufficiency of the evidence for all of appellant’s
convictions under the same analysis.
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wholly circumstantial evidence in proving appellant’s requisite state of mind, and the
circumstantial evidence presented was consistent with both guilt and innocence.
Uttering is an attempt to employ as true, a forged coin, note, or bill, knowing it to be
forged. Code § 18.2-170(3); see also Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d
102, 106 (1964) (noting, uttering “is an assertion by word or action that a writing known to be
forged is good and valid”). Forgery “is defined as ‘the false making or materially altering with
the 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, 263
(1964)) (emphasis added). Likewise, Code § 18.2-178(a), which criminalizes obtaining money
by false pretenses, states,
If any person obtain, by any false pretense or token, from any
person, with intent to defraud, money, a gift certificate or other
property that may be the subject of larceny, he shall be deemed
guilty of larceny thereof; or if he obtain, by any false pretense or
token, with such intent, the signature of any person to a writing,
the false making whereof would be forgery, he shall be guilty of a
Class 4 felony.
(Emphasis added). 5
When the sufficiency of the evidence is challenged on appeal, the Court must “‘presume
the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is
‘plainly wrong or without evidence’ to support it.” Kelly v. Commonwealth, 41 Va. App. 250,
257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96,
99, 570 S.E.2d 875, 876 (2002)). The Court “may not substitute [its own] judgment for that of
the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
5
Appellant concedes that with the exception of appellant’s fraudulent intent, the
Commonwealth sufficiently proved the elements of each offense.
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The relevant question on appeal is whether “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Crowder v. Commonwealth, 41
Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Kelly, 41 Va. App. at 257, 584 S.E.2d
at 447).
“The fact that an instrument was forged, made payable to the defendant, and endorsed by
him, is sufficient evidence of the defendant’s intent to defraud the drawee.” Fitzgerald, 227 Va.
at 174, 313 S.E.2d at 395. In the particular context of uttering, “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). In the instant case, Golbreski testified that all the
checks were forged. Thus, the jury was permitted to infer appellant’s guilty knowledge from
possession of the checks alone.
However, appellant argues the uncontroverted evidence did not exclude the reasonable
hypothesis of his innocence because: (1) he never tried to conceal his identity during any of the
transactions; (2) he stayed in the store while one of the traveler’s checks was being verified; and
(3) at all times he was cordial and polite. Appellant’s argument views the evidence in isolation
and ignores the other evidence presented by the Commonwealth.
“‘Intent may, and most often must, be proven by circumstantial evidence.’” Ellis v.
Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 456 (1999) (quoting Fleming v.
Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)). “If evidence of intent is
wholly circumstantial, ‘all necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable hypothesis of innocence.’” Dukes v.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting Inge v. Commonwealth,
217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)); accord Bishop v. Commonwealth, 227 Va. 164,
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169, 313 S.E.2d 390, 393 (1984). “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.’” Hudson, 265 Va. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242
Va. 413, 425, 410 S.E.2d 662, 669 (1991)). “Subsequent acts of the drawer are of evidential
value . . . in helping to establish the existence of the fraudulent intent at that specific time.”
Rosser v. Commonwealth, 192 Va. 813, 817, 66 S.E.2d 851, 853 (1951).
The Commonwealth’s evidence showed that after appellant obtained the traveler’s
checks, he immediately negotiated each check for an inexpensive item and a large amount of
cash. On one occasion, appellant waited only a few minutes in between transactions at the same
ABC store. Further, the Commonwealth’s evidence showed that when Anstead attempted to
verify one of the checks, appellant left the store and abandoned the $100 check. Finally,
appellant provided conflicting accounts as to how he obtained the checks. While appellant told
Huff that he found the checks behind a convenience store, witnesses for appellant testified that
S.G. received them from her father and then gave them to appellant. From these conflicting
accounts, the jury was entitled to conclude that appellant was “lying to conceal his guilt.”
Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004).
The evidence, taken as a whole and viewed in the light most favorable to the
Commonwealth, was consistent with appellant’s guilt and inconsistent with innocence. Further,
this Court must give deference to a jury’s reasonable inferences drawn from the facts. Hancock
v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Based on all the
evidence and the reasonable inferences drawn therefrom, the jury could reasonably conclude
appellant knew the checks were forged. Accordingly, the Commonwealth’s evidence was
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sufficient to prove appellant had the requisite intent to defraud, necessary to support his
convictions.
Finally, appellant argues that his convictions for uttering and obtaining money by false
pretenses were inconsistent with the jury acquitting him of the forgery charges.
The law regarding inconsistent verdicts is well-settled in this
Commonwealth. As this Court has held, “the fact that verdicts
may, on their face, arguably appear inconsistent, does not provide
a basis to reverse either conviction on appeal, provided the
evidence supports each verdict. Jury verdicts may appear
inconsistent because the jury has elected through mistake,
compromise, or lenity to acquit or to convict of a lesser offense for
one charged crime that seems in conflict with the verdict for
another charged offense.”
Tyler v. Commonwealth, 21 Va. App. 702, 708, 467 S.E.2d 294, 297 (1996) (quoting Pugliese v.
Commonwealth, 16 Va. App. 82, 96, 428 S.E.2d 16, 26 (1993)). As discussed above, the
evidence was sufficient to support the jury’s findings on each element of the crimes for which
appellant was convicted. Thus, the fact that the jury acquitted appellant of the forgery charges is
of no consequence to his convictions for uttering and obtaining money by false pretenses.
III. CONCLUSION
For the foregoing reasons, we conclude the evidence was sufficient to support the jury’s
finding that appellant had the requisite intent to defraud. Accordingly, we affirm appellant’s
convictions.
Affirmed.
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