Toonya Michlle Clary v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
TONYA MICHELLE CLARY
MEMORANDUM OPINION * BY
v. Record No. 3010-00-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 28, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Robert P. Geary for appellant.
Margaret W. Reed, Assistant Attorney General,
(Randolph A. Beales, Attorney General, on brief),
for appellee.
Tonya Michelle Clary was convicted in a bench trial of
forgery and uttering, in violation of Code § 18.2-172, and grand
larceny of the proceeds, in violation of Code § 18.2-95. The
trial court suspended imposition of sentence on the convictions
on the condition that she keep the peace and be of good behavior
for three years. Clary appeals all three convictions on the
ground that the evidence failed to prove her identity as the
perpetrator. For the reasons that follow, we affirm.
Analysis
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The credibility of
the witnesses and the weight of the evidence are matters to be
determined solely by the trier of fact. Swanson v.
Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259
(1989). Accordingly, we "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 that may be drawn" from the credible evidence.
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). Moreover, we view the evidence presented at trial
in its entirety. See Peoples v. Commonwealth, 147 Va. 692, 704,
137 S.E. 603, 606 (1927) ("[I]t frequently happens that the
combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion." (citations omitted)); Hope v.
Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990)
(en banc).
The decision of the trial court will not be disturbed
unless plainly wrong or without evidence to support it. McGee
v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc). "Circumstantial evidence is sufficient to
prove guilt beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . [are] consistent with guilt and
inconsistent with innocence and exclude every reasonable
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hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
However, "the Commonwealth need only exclude reasonable
hypotheses that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Viewed in light of these well established principles, the
evidence proved beyond a reasonable doubt that Tonya Clary was
the criminal agent of the charged offense. On May 22, 2000,
check number 1466 from the account of Doris Pike was cashed at
the Willow Lawn branch of BB&T. "Tonya Clary" was the payee of
the check, and the check was endorsed with the signature "Tonya
Clary" and her social security number. The teller noted that
the person who cashed the check presented positive
identification as "Tonya Clary." The trial court verified that
the social security number on the check was the same social
security number listed as Clary's on her arrest warrant.
Furthermore, only Clary had access to Pike's checkbook
during the time the check was stolen. The evidence proved that
the check was stolen on May 11 or May 12 and that no other nurse
worked for Pike on those days. First, Clary did not argue on
brief that the check was stolen before May 11 or after May 22.
We, therefore, need only address the period reflected in the
argument made. See Bennett v. Commonwealth, 35 Va. App. 442,
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452, 546 S.E.2d 209, 213 (2001) (declining to consider issue not
addressed in appellant's brief). Moreover, her attorney's
statement at trial that "you have a check that's stolen between
5/11 and 5/22" establishes that fact on appeal. See McNallen v.
McNallen, 62 F.3d 619, 625 (4th Cir. 1995) (holding that
defendant's counsel's statement at trial, "I certainly don't
dispute that McNallen's actions were willful," a judicial
admission, established the fact of willfulness in the
litigation); West v. Anderson, 186 Va. 554, 563, 42 S.E.2d 876,
880 (1947) (refusing to consider, on appeal, plaintiff's claimed
value of land taken from him where he judicially admitted to a
value in his grounds of defense, noting that "one cannot . . .
ask that his case be made stronger than he makes it, when his
case depends on facts within his own knowledge"). Second, Pike
provided testimony that showed that the check could not have
been stolen after May 12. 1 Thus, the trial court reasonably
inferred that the check was stolen on May 11 or May 12.
It is undisputed that no other nurse worked for Pike's
mother on May 11 or May 12. Clary, however, worked as a
substitute nurse for Pike's mother on May 11, 2000.
1
At trial, Pike explained that she wrote check 1463 from
her checking account on May 8 and checks 1464, 1465, and 1467 on
May 12. Because she always wrote her checks sequentially and
would have written check 1466 if it had been in her checkbook on
that date, Pike concluded that check 1466, the stolen check, was
not in her checkbook on May 12.
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Consequently, only Clary had access to the checkbook during the
period check 1466 was stolen.
Accordingly, Clary's hypothesis that "one of the other four
or five nurse's aides who worked at the Pike residence from May
11th to May 22nd [could have been the criminal agent]" does not
reasonably flow from the evidence, and the Commonwealth does not
have the burden of excluding it. See Cantrell v. Commonwealth,
7 Va. App. 269, 290, 373 S.E. 328, 339 (1988) (noting that the
reasonableness of a hypothesis of innocence is a factual
finding, which is binding on appeal unless plainly wrong);
Hamilton, 16 Va. App. at 755, 433 S.E.2d at 29. Moreover, the
evidence as a whole proved Clary was the criminal agent. See
Peoples, 147 Va. at 704, 137 S.E. at 606; Hope, 10 Va. App. at
386, 392 S.E.2d at 833. Therefore, we affirm Clary's
convictions.
Affirmed.
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Benton, J., dissenting.
The evidence failed to prove beyond a reasonable doubt that
appellant was the person who stole the check, forged the check,
or uttered the check. Thus, I would reverse the convictions for
insufficiency of the evidence.
"[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
charged." In re Winship, 397 U.S. 358, 364 (1970). "Where
inferences are relied upon to establish guilt, they must point
to guilt so clearly that any other conclusion would be
inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514,
518, 199 S.E. 471, 473 (1938). Thus, the following principles
are well established:
Proof by circumstantial evidence "is not
sufficient . . . if it engenders only a
suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture."
"'[A]ll necessary circumstances proved must
be consistent with guilt and inconsistent
with innocence and exclude every reasonable
hypothesis of innocence.'" "When, from the
circumstantial evidence, 'it is just as
likely, if not more likely,' that a
'reasonable hypothesis of innocence'
explains the accused's conduct, the evidence
cannot be said to rise to the level of proof
beyond a reasonable doubt."
Betancourt v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d
873, 878 (1998) (citations omitted).
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On May 12, when Doris Pike wrote checks numbered 1464,
1465, and 1467, she did not write check 1466 and apparently did
not realize that it was not in the expected sequence in her
checkbook. Except for proof that check 1466 was cashed May 22,
and, thus, was taken before that date, no evidence proved when
the check was removed from Pike's checkbook. Pike first learned
on June 7, when she received her bank statement, that the check
had been taken from her checkbook and cashed. Furthermore, the
evidence proved that at least five nursing aides from the same
nursing service were in Pike's house during May prior to the
date the check was negotiated at the bank. Even if we infer
that check 1466 was stolen by May 12, which was the day Pike
wrote checks out of sequence, Pike testified that other nursing
aides from the same nursing service were in her house prior to
that date.
It is true that in the motion to strike at the close of the
evidence, appellant's attorney argued that the evidence showed
"you have a check that's stolen between 5/11 and 5/22 of this
year; you know its 5/22 because that's the date it was
transacted at [the bank]." That argument, however, was not a
stipulation of a fact to be proved; it was apparently
appellant's attorney's supposition about the possible interval
from the time the check could have been removed through the date
of the negotiation of the check. Appellant's brief on appeal,
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likewise, contains no stipulation and merely references that
argument as an incident of the trial.
The giving by the accused of an unclear or
unreasonable . . . explanation . . . are
matters for the jury to consider, but they
do not shift from the Commonwealth the
ultimate burden of proving by the facts or
the circumstances, or both, that beyond all
reasonable doubt the defendant committed the
crime charged against him.
Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533
(1951). The evidence proved with certainty only the date Pike
wrote the check out of sequence and the date the check was
negotiated. From the evidence in the record, the trial judge
could only have speculated who stole the check and whether the
check was stolen in May, or April, or any month prior to that
time.
The evidence proved further that on May 22, 2001 a person
went to the same branch banking office that Pike normally uses
and cashed check 1466, which was drawn in the amount of $200.
The check, which was introduced in evidence, shows that the name
of the payee was "Tonya Clary," that the check was endorsed
"Tonya Clary," and that below the endorser's signature was a
social security number. Pike testified that she did not write
the check, that the payor's signature is not her writing, and
that she did not authorize anyone to write the check.
The bank teller who cashed the check did not testify. The
only evidence in the record concerning the circumstances of the
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negotiation of the check at the bank's "drive-thru" window was
the following testimony from the bank's operations manager:
Q: . . . . Just tell me what's on the
check.
A: What's on the check? Um, identification
that the teller received from the person who
was cashing the check. . . .
Identification from the person who was
cashing the check, like a driver's license
or whatever type of identification they used
to cash – to verify that that is them and
that's what the teller goes by to cash the
check.
Q: And that is the payee?
A: Yes.
Q: In this case, a Tonya Clary?
A: Yes.
No evidence proved that any writing on the check was
appellant's handwriting or that the person used valid
identification, if any, when cashing the check. The record
contains no photographs identifying the person who cashed the
check at the bank. Thus, no evidence proved that appellant
forged the check or was, in fact, the person who negotiated the
check at the bank. From the evidence in the record the trial
judge could only have speculated who stole the check, who forged
the check, or who negotiated the check.
Simply put, the evidence relied upon to support the
convictions is that a check was stolen from Pike's checkbook on
a date uncertain, that Tonya Clary worked in Pike's home on May
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11 as a nursing aide, and that a person cashed Pike's check on
May 22, using the name Tonya Clary. The principle is well
established that evidence is not sufficient to sustain a
conviction merely because it is consistent with guilt; it also
"must be consistent only with the guilt of the accused." Moore
v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 742 (1997).
"If the facts and circumstances proved are as consistent with
innocence as with guilt, then the evidence is not sufficient to
sustain the verdict. Suspicion is not enough; conjecture is not
proof." Stoots v. Commonwealth, 192 Va. 857, 865, 66 S.E.2d
866, 871 (1951).
Because this evidence raises only a suspicion that
appellant stole the check and then cashed it, I would reverse
the convictions.
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