Ronald Oliver Sheppard v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
RONALD OLIVER SHEPPARD
MEMORANDUM OPINION * BY
v. Record No. 0204-01-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Graham C. Daniels (Todd M. Ritter; Daniels &
Morgan, on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Ronald Oliver Sheppard was convicted in a bench trial of
uttering a forged instrument in violation of Code § 18.2-172 and
sentenced to serve five years in prison, four years suspended. 1
On appeal, he contends the evidence was insufficient to prove
his guilt beyond a reasonable doubt. For the reasons that
follow, we reverse the conviction and dismiss the indictment.
According to well established principles, we review the
evidence and all inferences that may be drawn from it, in the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The trial judge found Sheppard not guilty of attempting to
obtain money by false pretenses, in violation of Code
§ 18.2-178.
light most favorable to the party prevailing below, the
Commonwealth. See Cooper v. Commonwealth, 31 Va. App. 643, 646,
525 S.E.2d 72, 73 (2000). So viewed, the evidence shows that
Sheppard went to the Rack and Sack grocery store on April 24,
2000 on Midlothian Turnpike in Chesterfield County and attempted
to cash a check. The check purported to be drawn on the Bank of
America account of Regency Square Mall and to have been signed
by its Vice President-Treasurer and was made out to "Omar
Phelps." In an effort to cash the check, Sheppard presented a
forged driver's license issued in the name of "Omar Montel
Phelps," but bearing Sheppard's photograph.
In accordance with store procedure, a store employee called
Gerald Franklin, the store's loss prevention manager, to verify
whether the check "was . . . good or bad." Franklin telephoned
Bank of America, the bank upon which the check had been written,
and conveyed the information about the check that had been
provided by the employee. As a result of the conversation,
Franklin advised Sheppard that the store would not cash the
check. Sheppard was detained, and the police were contacted.
After receiving his Miranda rights, he told the police that a
man named "Big . . . gave him the check and made the [driver's
license] for him," shortly before he entered the store. At
trial, the Commonwealth did not present any witness from Regency
Square Mall to prove that the signature on the check was false
or that it had been fraudulently made to Omar Phelps.
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Sheppard claims on appeal that the Commonwealth failed to
prove beyond a reasonable doubt that the check was a forgery, a
necessary element of the crime. See In re Winship, 397 U.S.
358, 364 (1970) (holding that due process requires the
prosecution to prove beyond a reasonable doubt every element
necessary to establish the crime charged); Stokes v. Warden,
Powhatan Correctional Center, 226 Va. 111, 117, 306 S.E.2d 882,
885 (1983). We agree.
Code § 18.2-172 provides, in pertinent part:
If any person forge any writing . . . to the
prejudice of another’s right, or utter, or
attempt to employ as true, such forged
writing, knowing it to be forged, he shall
be guilty of a Class 5 felony.
Uttering, an independent criminal offense, 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). A conviction for uttering, therefore, must be
predicated on proof that the instrument employed was forged.
See id. A writing is forged if it was "false[ly] ma[de] or
materially alter[ed] with intent to defraud . . . [and] 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) (citations omitted).
The evidence does not show that the check was forged. At
best, the evidence shows that Sheppard attempted to pass the
check, that the check was made payable to Omar Phelps, and that
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the defendant falsely represented that he was Omar Phelps in
attempting to cash the check. No evidence concerning the
purported making of the check or the absence of authority to
make or alter the check was admitted at trial. See Lewis v.
Commonwealth, 213 Va. 156, 156-57, 191 S.E.2d 232, 233 (1972)
(holding that lack of authority is an essential element of
forgery, which the Commonwealth must prove beyond a reasonable
doubt).
The Commonwealth argues, however, that the trier of fact
reasonably inferred that Sheppard himself forged the check
because Sheppard possessed a forged license in the name of Omar
Phelps, which he obtained from "Big" who also supplied him with
the check bearing that name. However, where the Commonwealth
proceeds by circumstantial evidence, the conviction will be
sustained only "'if the evidence excludes every reasonable
hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975)).
Because the evidence proves only that Sheppard did not legally
have the right to cash the check, it is equally likely that it
was a valid check that was stolen as it is that it was forged.
Therefore, to sustain Sheppard's conviction, the Commonwealth
must exclude the reasonable hypothesis that the check was
stolen, but not forged. See Hamilton v. Commonwealth, 16 Va.
App. 751, 755, 433 S.E.2d 27, 29 (1993). The Commonwealth,
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however, failed to present any evidence excluding this
reasonable hypothesis of innocence.
Because there is no evidence in the record to exclude the
hypothesis that the check was stolen, or to support the trial
court's determination that the check was a forgery, we reverse
Sheppard's conviction and dismiss the indictment. See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc).
Reversed and dismissed.
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