Opinion
Record No. 0703-92-3
July 13, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE DIANE MCQ. STRICKLAND, JUDGE.
Steven P. Milani (Office of the Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Koontz.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Clinton Gearheart, appellant, seeks reversal of his convictions for obtaining money by false pretenses on the ground that the evidence was insufficient to support the jury's verdict. We affirm because we hold that the testimony of Paula Calloway, the prosecution's witness, was not nullified as a matter of law as a result of her inconsistent statements, and hold that the evidence was sufficient to support the verdict.
Calloway, the Commonwealth's chief witness, testified on direct examination as follows. On January 12, 1990, Calloway met appellant at a Shoney's Restaurant in Roanoke where appellant gave Calloway a fictitious birth certificate and W-2 form. Both of these documents were in the name of "Elizabeth A. Johnson." Appellant also provided Calloway with an address, phone number, and identification materials. Appellant and Vickie DePew rehearsed Calloway with her new identification.
From 1989 until his arrest, appellant had a "business relationship" involving a complex check falsifying scheme with Vickie DePew and Calloway. Calloway, a North Carolina resident, would be contacted by either appellant or DePew to meet over a weekend to carry out the scheme.
Calloway took the documents to the Division of Motor Vehicles (DMV), where she obtained a personal identification card. She then opened various fraudulent business checking accounts using her false identification. When Calloway opened the accounts, she was given books of blank "starter checks."
On January 12, 1990, appellant drove Calloway from the Shoney's to the DMV, and then to the banks where she opened the accounts. They then went to a hotel room where the starter checks were falsified and wiped for fingerprints. Appellant then mapped out the grocery stores where the checks would be cashed. Appellant drove Calloway on January 12 and 13 to Harris-Teeter, Kroger, Winn-Dixie and Food Lion stores where she cashed the checks for money and groceries. When the checks were cashed, appellant, DePew and Calloway divided the proceeds.
Gordon Menzies, Jr. qualified at trial as an expert document examiner. He testified that the account information on all of the checks used at the grocery stores was entered using a typewriter; the amounts of the checks were entered using a check writer; and the makers' signatures were produced using a rubber stamp.
Roanoke police searched a storage unit rented in DePew's name and found paraphernalia from the falsifying scheme, including typewriters, "paymaster" printing machines, check printing machines, numerous starter checkbooks, rubber stamps, and assorted blank birth certificates and W-2 forms. Appellant made at least one payment on the storage unit, which was rented February 22, 1990. Appellant's personal papers were also discovered in the storage unit.
Appellant was tried by a jury in the Roanoke City Circuit Court and found guilty of all eleven counts of obtaining money by false pretenses in violation of Code § 18.2-178. The court sentenced appellant to a total of fourteen years in the penitentiary and ordered appellant to pay $2,815.06 in restitution.
Appellant contends that the following testimony of Calloway during her cross-examination rendered her testimony on direct examination nugatory, and, thus, established the insufficiency of the evidence to support the jury's verdict:
Counsel: Isn't it correct that you did the January offenses with Mr. Kirby and not with Bobby Gearheart; isn't that correct?
Calloway: Bobby was there, I can't positively say Bobby did or didn't type [the checks]; I can't remember.
Counsel: Isn't it quite possible that Mr. Gearheart didn't have anything at all to do with the January offenses; isn't that correct?
Calloway: Possibly.
Counsel: So you don't have any recollection that [sic] you can sit here under oath today and say that you are sure that is correct?
Calloway: Correct.
However, on redirect examination, the following colloquy between Calloway and the Commonwealth occurred:
Q Mr. Milani asked you if you and your partners participated in these offenses, and you said yes. Does that statement still stand? Do you stand by that statement?
A Yes.
Q And who are those partners?
A Robert Gearheart and Vickie DePew.
It is the function of the jury to judge the credibility of the witnesses, as well as the weight of their evidence. See Spencer v. Commonwealth, 240 Va. 78, 98, 393 S.E.2d 609, 621, cert. denied, 498 U.S. 908 (1990). The fact that a witness makes inconsistent statements on the stand does not render the testimony nugatory or unworthy of belief. Credibility remains exclusively a question for the trier of fact. See Swanson v. Commonwealth, 8 Va. App. 376, 378, 382 S.E.2d 258, 259 (1989). We hold the trial court was correct in allowing Calloway's testimony to be considered by the jury.
Next, we determine whether the evidence was insufficient to sustain the jury's verdict. Where the sufficiency of the evidence is challenged on appeal, this Court must consider all evidence and any reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth.Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
To constitute the statutory offense of obtaining money under false pretenses, there must be an intent to defraud, and actual fraud committed, use of false pretenses to perpetrate the fraud, and accomplishment of the fraud by false pretenses. See Hubbard v. Commonwealth, 201 Va. 61, 65-66, 109 S.E.2d 100, 104 (1959). Proof of an intent to defraud may be shown by circumstantial evidence, which is as acceptable to prove guilt as direct evidence, and, in some cases, "is practically the only method of proof." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981).
Here, the evidence established that on January 12 and 13 appellant met with Calloway, gave her fraudulent identification papers enabling her to assume a fictitious identity, and took her to the DMV and to banks where she opened the fraudulent accounts. Acting with DePew, appellant falsified blank starter checks, gave them to Calloway and then drove her to four different grocery stores to cash them. Calloway also testified that appellant kept part of the proceeds from the January 12 and 13 check cashing schemes.
We hold that the evidence was sufficient to support the jury's verdict.
Affirmed.