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Mears v. Commonwealth

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 0701-93-2 (Va. Ct. App. Jun. 7, 1994)

Opinion

Record No. 0701-93-2

Decided: June 7, 1994

FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY, Joseph E. Spruill, Jr., Judge

Affirmed.

Charles J. McKerns, Jr. (McKerns McKerns, on brief), for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


The decision of the trial court is affirmed for the following reasons:

It is unlawful for any person, with the intent to defraud, to make, draw or utter a check, knowing at the time of such making, drawing, or uttering, there are insufficient funds in his account. Code Sec. 18.2-181. "Code Sec. 18.2-183 provides that when a check is returned by the drawee bank because of lack of funds or credit, such return constitutes prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, unless the maker, within five days after receiving written notice of dishonor by certified or registered mail, pays the holder the amount due." Bray v. Commonwealth, 9 Va. App. 417, 423, 388 S.E.2d 837, 840 (1990). "This is a rule of evidence upon which the Commonwealth may rely in facilitating proof of the fraudulent intent of the drawer." Id. The statute creates a rebuttable presumption of the necessary intent and knowledge. Bagheri v. Commonwealth, 12 Va. App. 1071, 1074, 408 S.E.2d 259, 262 (1991); Hubbard v. Commonwealth, 201 Va. 61, 65, 109 S.E.2d 100, 104 (1959).

On appeal, we must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and grant to the Commonwealth all fair inferences reasonably deducible from its evidence. Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). A trial court's judgment will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Code Sec. 8.01-680.

"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). Even though there may be some evidence favorable to the defense, the trier of fact is not required to accept it, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), and may reject that which is found to be implausible and accept that which it finds believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973).

Appellant admitted that she purposely withdrew funds from her account so that her account would contain insufficient funds when she issued the check to Baker. At times she contradicted herself when she testified about when she withdrew the funds. She lived in the apartment during the period of time for which the rent check was drawn. After she received notice of her dishonored check, she did not pay the holder within five days of such receipt and did not respond. These circumstances constituted prima facie evidence of an intent to defraud. Therefore, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support the trial judge's determination that appellant's explanation that she wrote the bad check because repairs needed to be done to the property was "most improbable," and his determination that appellant's evidence failed to rebut the presumption of fraud.

Appellant's conviction, therefore, is affirmed.

Affirmed.


Summaries of

Mears v. Commonwealth

Court of Appeals of Virginia. Argued at Richmond, Virginia
Jun 7, 1994
Record No. 0701-93-2 (Va. Ct. App. Jun. 7, 1994)
Case details for

Mears v. Commonwealth

Case Details

Full title:TAMRA JEAN MEARS, s/k/a TAMARA MEARS v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Richmond, Virginia

Date published: Jun 7, 1994

Citations

Record No. 0701-93-2 (Va. Ct. App. Jun. 7, 1994)