Michael Bell (Shelton Bell) v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued by teleconference
MICHAEL BELL S/K/A
MICHAEL SHELDON BELL
MEMORANDUM OPINION * BY
v. Record No. 0139-01-2 JUDGE JEAN HARRISON CLEMENTS
MARCH 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Wayne R. Morgan, Jr., for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Michael Bell was convicted in a bench trial 1 of five counts
of grand larceny, five counts of uttering, four counts of
forgery, and one count of attempted escape with force from
police custody. On appeal, he contends the evidence was
insufficient to sustain the convictions. We agree and reverse
the convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
With the exception of the entry of the sentencing order
entered nunc pro tunc on March 7, 2001, from which this appeal
was officially taken, the Honorable James B. Wilkinson presided
over the proceedings addressed in this opinion.
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact[ ]finder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). We will
not disturb the conviction unless it is plainly wrong or
unsupported by the evidence. Sutphin v. Commonwealth, 1 Va. App.
241, 243, 337 S.E.2d. 897, 898 (1985).
A. Grand Larceny, Uttering, and Forgery
Before trial, Bell was arraigned on indictments charging
him with fourteen offenses related to the cashing of counterfeit
checks at a Q-Market store in Richmond, as follows:
Date of
Case # Offense Offense Code §
00-1770-F Grand Larceny 8/20/00 18.2-95
00-1771-F Uttering (Check for $317.98) 8/20/00 18.2-172 2
2
The indictment in case number 00-1771-F made no reference
to Bell. Instead, it read as follows:
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00-1772-F Grand Larceny 8/9/00 18.2-95
00-1773-F Grand Larceny 8/9/00 18.2-95
00-1774-F Grand Larceny 8/7/00 18.2-95
00-1775-F Grand Larceny 8/7/00 18.2-95
00-1776-F Forgery (Check for $228.73) 8/7/00 18.2-172
00-1777-F Uttering (Check for $228.73) 8/7/00 18.2-172
00-1778-F Forgery (Check for $458.12) 8/9/00 18.2-172
00-1779-F Uttering (Check for $458.12) 8/9/00 18.2-172
00-1780-F Forgery (Check for $451.12) 8/9/00 18.2-172
00-1781-F Uttering (Check for $451.12) 8/9/00 18.2-172
00-1782-F Forgery (Check for $463.00) 8/7/00 18.2-172
00-1783-F Uttering (Check for $463.00) 8/7/00 18.2-172
Bell pled not guilty to each charge. 3
The GRAND JURY charges that:
On or about August 20, 2000, in the City of
Richmond,
MILLARD MAURICE WATKINS
did feloniously and unlawfully utter a
counterfeit check #9332, in the amount
$317.98, or attempt to employ as true
knowing such to be forged.
Nothing in the record indicates that the indictment was amended.
Watkins, who, like Bell, was arrested for passing counterfeit
checks at the Q-Market store, testified on Bell's behalf at
trial and, after being advised of his Fifth Amendment rights,
admitted that he, not Bell, was responsible for cashing the
counterfeit checks in question.
3
The sentencing order entered in this matter erroneously
recited that Bell "pleaded guilty to said charges" and that the
trial court "found for a fact that the defendant's pleas of
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Following the Commonwealth's presentation of evidence at
trial, Bell moved to strike the evidence related to these charges,
arguing the Commonwealth failed to prove that he was the one who
cashed the counterfeit checks. He argued that, in the absence of
proof that he cashed the checks, the Commonwealth's evidence
failed to prove the charged offenses related to the counterfeit
checks. The trial court denied the motion and found Bell "guilty,
as charged."
On appeal, Bell renews his argument that the Commonwealth's
evidence was insufficient to prove that he was the person who
cashed the counterfeit checks at the Q-Market store. He argues
that, even though his name was on the counterfeit checks, the
Commonwealth failed to otherwise connect him to any of the
specific checks cashed.
The Commonwealth concedes, on appeal, that the evidence was
insufficient to sustain the uttering conviction in case number
00-1771-F, the grand larceny conviction in case number 00-1773-F,
the forgery conviction in case number 00-1780-F, and the uttering
conviction in case number 00-1781-F. However, as to the remaining
ten convictions concerning the cashing of the counterfeit checks,
the Commonwealth contends its evidence was sufficient to show that
Bell was the one who cashed the subject counterfeit checks.
guilty were made freely, voluntarily and intelligently and were
accordingly accepted."
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"In every criminal prosecution the Commonwealth must
establish beyond a reasonable doubt all elements of the offense
and that the accused did commit it." Harward v. Commonwealth, 5
Va. App. 468, 470, 364 S.E.2d 511, 512 (1988). Thus, to sustain
the grand larceny, uttering, and forgery convictions in this case,
the Commonwealth had to prove beyond a reasonable doubt, inter
alia, that Bell was the individual who cashed the subject checks
in the Q-Market store. See Code §§ 18.2-95 and 18.2-172; see also
Jones v. Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417
(1986) (defining "larceny" 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"); Walker v. Commonwealth, 25 Va. App. 50, 58,
486 S.E.2d 126, 131 (1997) (defining "uttering," in this context,
as putting "a forged check into circulation"); Fitzgerald v.
Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395 (1984)
(holding that "[p]ossession 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").
Here, the Commonwealth introduced into evidence four
counterfeit checks drawn on the account of Care Advantage, Inc.
and made out to "Michael Bell," as follows: (1) dated August 15,
2000, in the amount of $317.98, (2) dated August 7, 2000, in the
amount of $228.73, (3) dated August 9, 2000, in the amount of
$458.12, and (4) dated August 7, 2000, in the amount of $463.00.
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Rateb Al-Ahmad, who, along with his brother, managed the
Q-Market store, identified each of the checks as having been
cashed at the Q-Market store. He testified that he and his
brother, who did not testify, were "in charge of cashing all the
checks." He also testified that he saw Bell in the Q-Market
store two or three times and cashed "at least two checks" for
him. He could not, however, identify which checks he cashed for
Bell or say conclusively that Bell cashed any of the four checks
presented at trial by the Commonwealth. Likewise, he admitted
there was nothing on the checks to show whether he or his
brother had cashed them. He further acknowledged that other
people had cashed similar counterfeit checks in the store during
that same period of time and offered no testimony of any method
used by the store to assure that only the payee listed on the
check could cash it.
Detective Arthur Rucker testified that, when he
investigated the reported passing of counterfeit checks at the
Q-Market store, Al-Ahmad and his brother gave him "a large
number of checks from Care Advantage that were forged."
According to Rucker, Al-Ahmad and his brother then identified
Bell from a photographic lineup as one of the people who "they
said presented the checks." Detective Rucker was unable,
however, to draw any connection between that identification and
the four specific counterfeit checks in evidence. He also
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admitted that Bell was not the only suspect arrested for cashing
counterfeit checks at the Q-Market store.
Finally, Detective J.P. Foust testified that he interviewed
Bell following his arrest. According to Foust, Bell admitted
that "he did pass some checks at the Q-Market." However, even
were we to assume that this "admission" encompassed the passing
of counterfeit checks at the Q-Market store, Detective Foust
offered no evidence connecting Bell to the specific counterfeit
checks introduced at trial or any other specific checks.
It is well settled in Virginia that, to sustain a
conviction, "the evidence, viewed in the light most favorable to
the Commonwealth, must go further than to create a mere
suspicion or probability of guilt; it must exclude every
reasonable hypothesis except that of guilt." Stamper v.
Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979),
cert. denied, 445 U.S. 972 (1980). Furthermore, circumstantial
evidence is entitled to the same weight as direct evidence only
to the extent that "it is sufficiently convincing." Id.
We conclude, therefore, that, because it presented no
evidence at trial, circumstantial or otherwise, that
convincingly linked Bell to the four specific counterfeit checks
upon which the instant charges were based, the Commonwealth
failed to prove beyond a reasonable doubt that it was Bell who
cashed the subject counterfeit checks. Thus, the Commonwealth's
evidence was insufficient, as a matter of law, to prove beyond a
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reasonable doubt that Bell committed the charged crimes of grand
larceny, uttering, and forgery. Consequently, we hold that the
trial court erred in overruling Bell's motions to strike the
evidence as to those charges.
B. Attempted Escape
Bell was also arraigned before trial, in case number
00-1784-F, on an indictment charging him with attempted escape
with force from police custody. 4 Bell pled not guilty to the
charge. At the conclusion of the Commonwealth's case, Bell
moved to strike the evidence as to the attempted escape with
force charge on the ground that there was no evidence that
Bell's attempted escape was "with force." The trial court
overruled the motion, finding that "[i]t took three officers to
4
The indictment in case number 00-1784-F read, in pertinent
part, as follows:
On or about September 13, 2000, in the City
of Richmond,
MICHAEL BELL . . .
did feloniously and unlawfully, having been
. . . in the custody of . . . a law
enforcement officer on a charge . . . of a
felony, attempt to escape such . . . custody
with force.
However, the indictment, in contradistinction to its express
charge that Bell attempted to escape police custody with force,
erroneously cited Code § 18.2-479, rather than Code §§ 18.2-478
and 18.2-26, a mistake that was repeated in the sentencing
order.
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subdue him." At the conclusion of the evidence, the trial court
found Bell "guilty, as charged."
Bell argues, on appeal, that the Commonwealth failed "to
show one scintilla of evidence" that he used any force in
attempting to escape. The Commonwealth argues that the evidence
in the record "makes clear that Bell struggled with the officers
when they attempted to return him to the patrol wagon after he
had run away."
To prove the crime of attempted escape with force, the
Commonwealth must prove beyond a reasonable doubt, inter alia,
"that by the use of force or violence" the person in police
custody attempted to leave "such custody without lawful
permission." Henry v. Commonwealth, 21 Va. App. 141, 147-48,
462 S.E.2d 578, 581 (1995) (construing Code § 18.2-478). "The
word 'force' means 'power dynamically considered [or] strength
directed to an end.'" Id. at 148, 462 S.E.2d at 581 (alteration
in original) (quoting Black's Law Dictionary 644 (6th ed.
1990)).
Here, the uncontradicted evidence, viewed in the light most
favorable to the Commonwealth, established that Bell was found
hiding in the attic of a residence by the police and placed
under arrest for passing counterfeit checks. He was led to the
front porch of the residence to await the arrival of a patrol
wagon to transport him. When the patrol wagon pulled up, Bell
told the police officer with him that he did not "want to go in
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the back of the wagon." The officer said, "Come on, Michael,
let's go," and took a step towards the wagon. At that point,
Bell "took off running." He ran approximately thirty yards
before three officers caught him and put him "on the ground."
Bell was then escorted to the wagon.
Contrary to the trial court's finding, this evidence fails
to show that Bell attempted to leave police custody by the use
of force or violence. It shows, rather, that Bell attempted to
escape by merely running away from the officer accompanying him
at the time. Any force or violence possibly attributable to
Bell by reasonable inference occurred only when the officers
were putting him on the ground, well after the attempt to escape
was completed.
Thus, we conclude the Commonwealth's evidence does not
support the trial court's finding that Bell's attempted escape
from police custody was "with force." Compare id. at 145-46,
462 S.E.2d at 580 (finding appellant escaped from police custody
with force where appellant struck officer immediately before
fleeing from him). The Commonwealth having failed to prove an
element necessary to sustain a conviction of attempted escape
with force, we hold that the trial court erred in overruling
Bell's motion to strike the evidence as to the attempted escape
with force charge.
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Accordingly, we reverse Bell's convictions and dismiss the
indictments.
Reversed and dismissed.
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