Opinion
Record No. 2055-93-2
Decided: February 14, 1995
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Kevin A. Lake for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General; Janet F. Rosser, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant was found guilty of uttering a bad check in violation of Code Sec. 18.2-181. On appeal, he contends the evidence is insufficient to establish that he had a fraudulent intent when he wrote or uttered the check. We disagree and affirm.
I.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Bonnie Enroughty testified that, on March 4, 1993, appellant wrote and delivered to her a $490 check as rent to obtain possession of a house. The check was dated March 4, 1993, and made payable to TCW Investments. Two weeks later, the check was deposited and returned to TCW marked "Account Closed," after which Enroughty personally "contacted Mr. Bolinsky" who made "several promises [to her] to bring the money to [TCW] but he never did."
Debbie Ricketts, a bank employee, testified that appellant's checking account had been overdrawn since December 24, 1992, and that as of March 4, 1993, the account was overdrawn in the amount of $420.07. Based on bank records, Ricketts testified that the bank contacted appellant numerous times in January and February, 1993, asking him to correct the deficit, but, despite appellant's promises to cover the overdraft, he never did so. On March 4, 1993, the amount that appellant would have been required to deposit to bring current the overdrawn account and honor the TCW check would have been $910.07. On March 5, 1993, the bank closed appellant's checking account.
Appellant testified that when he made and delivered the $490 check to Enroughty, he "told her not to put it, not to do anything with it until Monday because I wouldn't get paid until Friday." Appellant testified that before Monday, he got pneumonia and for two weeks was "too sick to get out of bed," preventing him from depositing his paycheck. Appellant testified that he knew he did not have sufficient funds in the account when he wrote the check to TCW, but he intended "to get [his] check deposited."
On cross-examination, appellant admitted that he had numerous felony convictions and misdemeanor convictions involving lying, cheating, and stealing dating from 1978 until 1990. Bonnie Enroughty was not recalled in rebuttal and did not testify as to whether the appellant had or had not told her when he issued the check not to do "anything with it until Monday because [he] wouldn't get paid until Friday." Thus, the appellant's testimony stands unrebutted as to what he told Enroughty about not doing "anything with" the check when he drew and delivered it to her.
II.
Under the bad check statute [Code Sec. 18.2-181], the gravamen of the offense is the intent to defraud. It may be established by either direct or circumstantial evidence. . . . Intent to defraud means that the defendant intends to "deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property."
Sylvestre v. Commonwealth, 10 Va. App. 253, 258-59, 391 S.E.2d 336, 339 (1990).
"To determine whether . . . there was fraudulent intent we look to the conduct and representations of the defendant." Norman v. Commonwealth, 2 Va. App. 518, 519, 346 S.E.2d 44, 45 (1986). Two months before appellant issued his check to TCW, a bank representative personally contacted him and informed him that his checking account was overdrawn. Although appellant promised to take care of the overdrawn account in January and February, 1993, appellant had taken no action on the December, 1992, deficiency as of March, 1993, when the bank closed the account. The bank's records established that at all times between December 24, 1992, and March 4, 1993, the account was overdrawn. Furthermore, the appellant admitted that he knew the account had insufficient funds when he made and uttered the TCW check.
From these facts, the fact finder could infer that appellant had a general intent to defraud TCW by having it relinquish possession of its house when he wrote and delivered the March 4, 1993, check without intending to honor it. See Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105 (1959) (dealing with predecessor Code Sec. 6-129). However, the intent to defraud under Code Sec. 18.2-181 for making or passing a bad check must be based upon a false representation that the check as written and delivered is good. Thus, the bad check offense as defined by the statute has not been committed if the payee knows at the time that the check was made and delivered that it was "not then good or collectible." Id. at 65, 109 S.E.2d at 104. "This is so because there is then no false representation that the check is good, which is a necessary element of the offense." Id. Thus, a second essential element of the bad check offense is that the drawer or utterer falsely represent that the check is good. Id. at 67, 109 S.E.2d at 105.
The appellant contends that the unrefuted evidence is that he told Enroughty that the check was not then good. Code Sec. 18.2-181 specifically provides that the Commonwealth is not required to prove that an "express representation [was] made in reference" to the check being good. By making, drawing, uttering or issuing a negotiable check, the maker or utterer impliedly represents that the check is good and that the account contains sufficient funds for the payor to honor the check. Id. at 65, 109 S.E.2d at 104. Thus, when appellant made the check and delivered it to Bonnie Enroughty, unless, as he contends, he made known to her that the check was not then good, then the evidence was sufficient to prove a violation of Code Sec. 18.2-181. As the trial judge ruled, knowingly making or issuing a bad check makes out a prima facie violation of Code Sec. 18.2-181. See Turner v. Brenner, 138 Va. 232, 235-36, 121 S.E. 510, 511 (1924).
The dispositive issue is, therefore, whether as a matter of law the evidence rebuts the inference that the check was good or whether the fact finder was entitled to disbelieve the appellant's unrebutted testimony that he told Enroughty the check was not good. While the fact finder judges the weight to be given evidence and the credibility of witnesses, generally the fact finder "may not arbitrarily disregard uncontradicted evidence of impeached witnesses which is not inherently incredible and not inconsistent with the facts appearing in the record, even though such witness [is] interested in the outcome of the case." Hodge v. American Family Life Assurance Co., 213 Va. 30, 31, 189 S.E.2d 351, 353 (1972). The trial judge as fact finder was not, however, required to believe that appellant told Enroughty that the check was not good when he made and delivered it to her.
Enroughty did not mention in her testimony that appellant said anything about not depositing the check or that it was not good at the time, a fact that should have been significant to her had it occurred. Furthermore, the appellant had not postdated the check until the date that he represented it would be good. By issuing the check, the appellant impliedly represented that the account contained funds sufficient to honor the check; therefore, the burden of producing evidence that he expressly represented otherwise was with the appellant. The fact finder was entitled to consider that the appellant had failed to establish this fact through Enroughty during cross-examination. Under these circumstances and considering how long his account had been overdrawn, the fact finder was not required to believe the appellant's account that he told Enroughty the check was not good. More importantly, however, the appellant was impeached as a witness by proving that he had been convicted of numerous felonies and misdemeanors involving moral turpitude, and for those reasons alone, the fact finder was entitled to disbelieve him. See Code Sec. 19.2-269.
Next, the appellant contends that the trial judge misapplied the law in that he ruled a violation of Code Sec. 18.2-181 is complete by proving that the accused issued a bad check knowing that insufficient funds are in the account, regardless of whether the payee knows that the check is not good. He bases this assertion upon the fact that the trial judge said, "So if I disregard everything else, the evidence that was put on, he still has violated the law, even if you tell somebody not to deposit the check." We do not understand the judge's statement to relieve the Commonwealth of its burden to prove beyond a reasonable doubt that the accused had a fraudulent intent and represented that the check was good. Rather, we understand the judge to have been commenting upon the fact that even if the appellant's statement were to be believed, at most, he said not to deposit the check until Monday after he got paid on Friday, not that he did not have sufficient funds in the bank at the time. He had stated, in effect, that a prima facie violation is made by proving that a person knowingly issues a bad check, and telling the payee not to deposit the check does not prove that the payee knew the check not to be good. See Brenner, 138 Va. at 235-36, 121 S.E. at 511.
III.
"[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion." Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). "In Hudson [v. Commonwealth, 10 Va. App. 158, 390 S.E.2d 509 (1990)], we approved the trial court's finding that the 'guidelines as we have them now are not binding but are used as a tool.' They are a factor to be considered and used by the judge as he sees fit." Robinson v. Commonwealth, 13 Va. App. 540, 542, 413 S.E.2d 661, 662 (1992) (quoting Hudson, 10 Va. App. at 160, 390 S.E.2d at 510).
The sentence imposed by the trial court was within the range set by the legislature. See Code Sections 18.2-181 and 18.2-10. Accordingly, the court did not abuse its discretion by imposing a five-year penitentiary sentence.
Therefore, we affirm the trial court.
Affirmed.