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WILEMAN v. COMMONWEALTH OF VIRGINIA


WILEMAN

v.

COMMONWEALTH OF VIRGINIA


May 6, 1997
Record No. 1139-96-2

DEAN A. WILEMAN, JR.

v.

COMMONWEALTH OF VIRGINIA

William L. Wellons, Judge
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued by Teleconference

OPINION BY CHIEF JUDGE NORMAN K. MOON
FROM THE CIRCUIT COURT OF HALIFAX COUNTY

Buddy A. Ward, Public Defender (Office of the Public Defender, on
brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief) for appellee.


Dean A. Wileman, Jr., appeals his convictions of grand larceny
by false pretenses in violation of Code ” 18.2-178 and
18.2-95 and of making and uttering a bad check in violation of
Code ‘ 18.2-181. Wileman contends: (1) the trial court erred in
admitting opinion testimony that the signature on a check
allegedly made and passed by Wileman and the signature on a bank
signature card were the same; (2) the evidence was insufficient
to sustain his conviction for making and uttering a bad check;
and (3) the evidence was insufficient to sustain his conviction
for grand larceny.

We hold (1) that the trial court properly admitted opinion
testimony concerning the legitimacy of Wileman’s signature, by a
bank officer with more than twenty-four years of experience whose
duties involved verification of customer signatures; (2) that the
testimony of a bank teller, who knew Wileman by sight, that
Wileman presented the check, coupled with testimony that the
signature on the bad check was Wileman’s, was sufficient to
sustain Wileman’s conviction for making and uttering a bad check;
and (3) that the evidence was sufficient to sustain Wileman’s
conviction for grand larceny by false pretenses. For these
reasons, we affirm.

Bad Check

On May 9, 1994, check #1020, drawn on the United Jersey Bank
for $3,975, was deposited into the South Boston Bank account of
Wileman’s business, J. L. Motors. The check was received by
Michelle Howerton, a teller at South Boston. Howerton testified
that she was positive that the check was deposited by Wileman.
South Boston’s banking procedures require that tellers ask for
identification for any deposit by any customer they do not
recognize and that when doing so, that they indicate on the check
that identification was requested and received. Howerton stated
that although she did not recall the exact transaction in which
Wileman presented check #1020, she was certain it was Wileman,
because if she had not recognized the presenter of the check,
even where the check was being deposited into the depositor’s
account, she would have requested identification and so indicated
on the check.

Wileman’s account was given immediate credit for the sum of
check #1020 when the check was originally deposited. Check #1020
was returned to South Boston marked, "Acct. Not Found."
Subsequently, Wileman wrote other checks on the South Boston
account for which there were insufficient funds as a result of
the nonpayment of check #1020.

At trial, Lonnie Powell, Vice-President of South Boston Bank
and the chief executive officer for local branches, testified
that he had been a banker for twenty-four years and that his
duties included identifying and authenticating signatures of bank
customers. Wileman’s South Boston signature card was introduced
without objection and Powell compared the signature card with
Wileman’s signature on two of Wileman’s other checks and the
signature appearing on check #1020. Powell concluded that the
signatures were the same on the three instruments and the
signature card. Counsel for Wileman objected to Powell’s
testimony, arguing that Powell was not a handwriting expert and
that his opinion invaded the province of the trier of fact.

Opinion Testimony

In Virginia, a lay witness may only offer an opinion as to the
authenticity of an alleged writing of a particular person where
the witness has seen and is familiar with that person’s writing. Adams
v. Ristine
, 138 Va. 273, 287, 122 S.E. 126, 130 (1924). In
essence, "the lay witness who has previously seen the
genuine writing of the person alleged to have written the
questioned document is `comparing’ the questioned document with
his recollection of the genuine handwriting." 1 Charles E.
Friend, The Law of Evidence in Virginia ‘ 15-11 (4th
ed. 1993).

A lay witness who is not familiar with a particular person’s
handwriting cannot be provided a sample of that person’s writing
for purposes of familiarizing himself or herself with it, before
comparing an alleged sample to a genuine sample. Such a
side-by-side comparison of genuine samples and alleged samples,
by a party unfamiliar with the alleged writer’s handwriting, is
the sole province of the expert witness. Hanriot v. Sherwood,
7 Hans. (82 Va.) 1, 10 (1884). Where a witness is neither an
expert nor familiar with the writings of the person whose
writings are in question, it is error for the trial court to
allow the witness to offer an opinion on such a comparison, as
the jury is as qualified as the witness to make the comparison. Adams,
138 Va. at 287, 122 S.E. at 130.

Whether a particular witness is qualified to testify as an
expert is "largely a matter in the discretion of the trial
court, and its rulings allowing a witness to testify will not be
disturbed unless it clearly appears that he was not
qualified." Id. at 288, 122 S.E. at 130. Here, a
comparison of Wileman’s signatures was made by Powell, a
Vice-President at South Boston with twenty-four years of banking
experience. Powell testified that he was regularly called upon to
identify and authenticate his customers’ signatures. Powell’s
work experience was sufficient to qualify him as an expert
witness. See Updike v. Texas Co., 147 Va. 208, 212,
136 S.E. 591, 593 (1927); Adams, 138 Va. at 288-89, 122
S.E. at 130.

In Adams, the Virginia Supreme Court held that,
bank officials and clerks of court of long experience in
examining and comparing signatures and writings may, in the
discretion of the trial court, give their opinion as to
whether or not the body of the will, the signature thereto
and the names of one attesting witness were written in the
same ink as the name of the other attesting witness, and as
to which of the two was the later writing.

138 Va. at 288, 122 S.E. at 130 (citing Savage v. Bowen,
103 Va. 540, 49 S.E. 668 (1905)). Accordingly, the Court ruled
that the trial court did not err in permitting a banker with
twenty years of experience, who testified that his duties
required him to "examine signatures as a daily incident of
his business, to testify as an expert." Id.

In Updike, the Court held it was error, under its
ruling in Adams, not to permit a witness with thirty years
of banking experience, whose duties required him to
"scrutinize handwritings" and who was then
vice-president and cashier of the Lynchburg National Bank, to
compare genuine and alleged signatures of the defendant and to
offer an opinion on the validity of the questioned signature.

Powell’s qualifications were equal to or surpassed the
bankers’ qualifications who were deemed qualified in the Updike
and Adams cases to give an opinion on the validity of a
person’s signature. Accordingly, we find the trial court did not
err in overruling Wileman’s counsel’s objection that Powell was
not qualified as an expert witness on the validity of a
signature.

Further, we find that the record contained sufficient
circumstantial evidence to sustain a finding that the signature
card of Wileman’s J. L. Motors business account was a genuine
sample of Wileman’s signature. While no document may be
introduced into evidence without proper authentication, Proctor
v. Commonwealth
, 14 Va. App. 937, 938, 419 S.E.2d 867, 868
(1992), circumstantial evidence may establish authenticity. Walters
v. Littleton
, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982).
The signature card, which was produced from a place of proper
custody, was admitted without objection. Testimony established
that the card produced was the signature card on file for
Wileman’s business account, J. L. Motors. It was undisputed that
Wileman was one of two partners trading as J. L. Motors. Further,
the card was introduced with bank statements for the J. L. Motors
account, with checks and deposit slips corresponding to the
deposits and withdrawals recorded in the statements. Evidence was
also introduced that Wileman issued a number of checks on the J.
L. Motors account and that he regularly made deposits and
withdrawals from the account. The evidence proved that South
Boston’s bank records reflected no assertion by Wileman that any
of the checks drawn on his account were forged or were otherwise
unauthorized. A number of the checks drawn on the account bear
notations in the memo section that reference expenses for auto
parts, insurance, and other such expenses that may reasonably be
inferred to relate to the operation of an automobile business.

Accordingly, we find the evidence sufficient to prove that the
signature card was an authentic sample of Wileman’s signature.
Thus we affirm the trial court’s admission of the card as a
genuine sample of Wileman’s signature.

Sufficiency of Bad Check Evidence

Relying on the Virginia Supreme Court’s decisions in Doyle
v. Commonwealth
, 212 Va. 677, 187 S.E.2d 201 (1972); Kayh
v. Commonwealth
, 219 Va. 424, 247 S.E.2d 696 (1978); and Edwards
v. Commonwealth
, 227 Va. 349, 315 S.E.2d 239 (1984), Wileman
asserts that Howerton’s identification of Wileman as the
presenter of check #1020 was insufficient to prove that Wileman
was the presenter.

In Doyle, the defendant was accused of having issued
three bad checks in a department store where he made separate
purchases from three different sales associates on the same day.
None of the sales associates knew the purchaser and all three
requested identification from the purchaser, who presented a
driver’s license. After ascertaining that the individual depicted
on the driver’s license was the presenter, all three sales
associates made notations on the respective checks indicating
that identification had been requested and received. At trial,
none of the sales associates could recall the specific
transaction in which they had received the check, but all three
testified that they would not have accepted the check if the
person presenting the check had not been the person depicted on
the photo identification. Doyle, 212 Va. at 678, 187
S.E.2d at 202. The Court rejected this evidence as insufficient
to establish the identity of the individual who issued the bad
checks. Id.

The Court reached the same conclusion on substantially the
same facts in Kayh, where a Sear’s sales associate
testified that before he accepted a purchaser’s check he
requested identification. He then ascertained that the presenter
and person depicted on the identification were the same and
copied the driver’s license number onto the check. Like the sales
associates in Doyle, the sales associate testified that he
could not remember the specific transaction in which the check
had been presented to him, but he presumed it to have been the
defendant because he would not have taken the check without
having verified that the person pictured on the I.D. was the
presenter. Citing their holding in Doyle, the Kayh
Court rejected this evidence as insufficient to establish the
defendant as the presenter. 219 Va. at 427, 247 S.E.2d at 698.

Subsequent to the Doyle and Kayh decisions, Code
?19.2?270.3 was enacted, providing that:

In any prosecution under Code ?.18.2-181 or Code
?18.2-182 for the presentation of a bad check, draft or
order, the following shall be admissible in any proceeding,
hearing or trial of the case and may be deemed competent
evidence with respect to the identity of the person who
delivered the check, draft or order in question to the payee,
cashing party or its representative:

1. The unpaid or dishonored check, draft or order, bearing
a notation thereon of the full name, residence address, home
telephone number, and either the driver’s license, social
security or credit account identification number of the
person who delivered such check, draft or order to the payee,
the cashing party or its representative, and bearing the
initials of the representative of the payee or cashing party
to whom the check, draft or order was delivered, as evidence
that such information was transcribed on such check, draft or
order at the time of such delivery . . . .

In Edwards, the Virginia Supreme Court rejected the
argument that Code ?19.2-270.3 established a rebuttable
presumption that a given check was presented "by the person
whose name, address, telephone number, and social security or
other identifying number are noted thereon," and reiterated
that Doyle and Kayh remained dispositive. 227 Va.
at 352-53, 315 S.E.2d at 240-41.

Doyle, Kayh, and Edwards presented
scenarios in which the presenter of the bad check could have
stolen both the checks and the identification or could have
falsified the identification documents. By either means, the
presenter could have successfully concealed his true identity and
implicated an innocent party as the passer of the bad checks.
Recognizing this, the Virginia Supreme Court found the evidence
in all three cases insufficient to establish the identity of the
presenter because doing so would require basing an inference upon
an inference. Quoting Doyle, the Kayh Court
explained that,

"To hold this evidence sufficient to establish the
identity of the defendant as the person who presented the
checks would require us to base an inference upon an
inference. It would first require us to infer that the
identification documents and photographs, which are not in
evidence, were genuine and authentic. It would then require
us to infer and assume that the defendant was the person who
presented the checks since this person presented
identification of the defendant. This we cannot do."

Kayh, 219 Va. at 427, 247 S.E.2d at 698 (citations
omitted).

The case before us is distinguishable because no such double
inference is required. Unlike Doyle, Kayh, and Edwards,
where the sales persons relied upon identification documents to
establish the presenter’s identity, here, the person accepting
the check knew the presenter. Consequently, there is no
possibility that the presenter’s identity was concealed or
falsified. Howerton testified that she knew Wileman by sight and
that based on her personal recognition of him, she would accept
his deposits without requiring identification. Accordingly,
because the proscribed double inference is not at issue, we hold
Howerton’s testimony was admissible to prove that Wileman was the
presenter of check #1020.

Howerton’s testimony, coupled with Powell’s opinion that the
signatures on check #1020 and on the signature card were the
same, is sufficient evidence, when viewed in the light most
favorable to the Commonwealth, to support the trial court’s
finding that Wileman was the person who presented the fraudulent
check to South Boston. Accordingly, we affirm Wileman’s
conviction of making and uttering a bad check.

Grand Larceny

On February 9, 1994, Wileman and his business partner
purchased nine cars, including a 1988 Pontiac LeMans, at an
auction conducted by Capital Auto. Capitol Auto gave Wileman
seven of the nine vehicle titles and indicated that the other two
titles would be forwarded to Wileman when they were received.
Wileman paid Capital Auto with a check for $9,780, drawn on
Central Fidelity Bank. Wileman’s check was returned from Central
Fidelity to Capital Auto marked "payment stopped."
Capital Auto attempted to contact Wileman but was unable to
locate him. Consequently, Capital Auto did not forward the two
remaining titles to Wileman.

On February 12, 1994, Byron and Angela Moore bought the 1988
Pontiac LeMans from Wileman at J. L. Motors. They paid Wileman
$600 down and financed the remainder through J. L. Motors.
Wileman gave the Moores a receipt and thirty-day tags, explaining
that he had just purchased the car and that "the title was
being sent to him along with other vehicles." When the title
failed to arrive within thirty days, Wileman sent the Moores an
additional set of thirty-day tags, explaining that "he was
having problems getting the title."

When the Moores learned that Wileman had failed to pay Capital
Auto for the LeMans, they relinquished the vehicle to the
Department of Motor Vehicles. The Moores contacted Wileman and he
made an appointment to meet with them and refund their money.
However, when the Moores arrived for their meeting, they found a
note from Wileman explaining he could not meet them because his
grandmother was sick. Wileman never repaid the Moores.

To sustain a conviction of larceny by false pretenses, the
Commonwealth must prove: (a) that the accused intended to
defraud; (b) that a fraud actually occurred; (c) that the
accused used false pretenses to perpetrate the fraud; and (d)
that the false pretenses induced the owner to part with his
property.

Wynne v. Commonwealth, 18 Va. App. 459, 460, 445 S.E.2d
160, 161 (1994) (en banc) (citations omitted).
Here, the evidence proved that Wileman sold a 1988 Pontiac LeMans
to the Moores three days after he purchased the car with a check
on which payment was stopped. It is uncontroverted that in so
doing, Wileman did not have title to the LeMans and that he
concealed from the Moores the fact that he had not paid for the
LeMans and consequently that he was not entitled to sell the
vehicle. As a result of Wileman’s representation that the title
was being forwarded to him, the Moores made a $600 down payment
to Wileman. Wileman implicitly represented that he owned the
LeMans and that he was lawfully entitled to the certificate of
title. The evidence proves that Wileman continued this deception
by issuing a second set of thirty-day tags to the Moores and by
explaining to them that he was having trouble getting title for
their vehicle. Finally, the record indicates that once his fraud
was discovered, Wileman promised to refund the Moores’ money but
ultimately failed to do so.

The evidence that Wileman sold the Moores a car he had not
paid for and for which he did not have legal title is sufficient
to sustain the trial court’s finding that Wileman had the
requisite intent to defraud. Likewise, the evidence that the
Moores gave Wileman $600 for a car, ownership of which he could
not legally transfer, is sufficient proof that fraud actually
occurred. The evidence that Wileman issued a receipt to the
Moores for the car and that he deceived them regarding the status
of the car’s title adequately supports the trial court’s finding
that Wileman’s larceny was accomplished by false pretenses and
that such pretenses were the means by which the Moores were
induced to part with their $600.

Accordingly, we affirm Wileman’s conviction for grand larceny
by false pretenses.

Affirmed.

 

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