                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia


JANE MARIE BRATTON
                                     MEMORANDUM OPINION * BY
v.   Record No. 1003-97-3          JUDGE ROSEMARIE ANNUNZIATA
                                          JUNE 9, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    Richard C. Pattisall, Judge
           Mark D. Kidd (Osterhoudt, Ferguson, Natt,
           Aheron & Agee, P.C., on briefs), for
           appellant.

           Richard B. Smith, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     Jane Marie Bratton (appellant) appeals her conviction under

Code § 18.2-181 for issuing a bad check with the intent to

defraud.   She contends that the trial court erred in relying upon

the presumptions contained in Code §§ 18.2-183 and 18.2-184, and

that, absent the presumptions, the evidence was insufficient to

support her conviction.    We affirm.

     We view the facts in the light most favorable to the

Commonwealth, the party prevailing below.    Clifton v.

Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)

(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975)).    Mark Bierley, owner of Bronco Service,


     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
performed maintenance and repairs on appellant's motor vehicle at

a cost of $230.48.      Appellant paid Bierley with a check for the

full amount of the service on September 10, 1996.        After Bierley

attempted to deposit the check, the bank returned the check,

marked "Account Closed."      In response to Bierley's query, the

bank informed him that the account had been closed on September

8th or 9th.      Bierley contacted appellant about the check; she

promised to pay the amount but did not do so.        Bierley sent a

certified letter to appellant about the check on September 22,

1996.       Appellant paid the amount due the day before her court

appearance on November 14, 1996.         She testified during the

sentencing phase of the trial that a bank employee told her on

September 11, 1996 that the bank was going to close her account.
        In finding appellant guilty, the court implicitly employed

the presumptions contained in Code §§ 18.2-183 and 18.2-184,

which remained, in the court's view, unrebutted.        The court

sentenced appellant to eighteen months incarceration.

        Appellant contends that the court erred in applying the

presumptions found in Code §§ 18.2-183 and 18.2-184. 1       Appellant

        1
         Code § 18.2-183 provides in relevant part:

               In any prosecution or action under the
               preceding sections, the making or drawing or
               uttering or delivery of a check, draft, or
               order, payment of which is refused by the
               drawee because of lack of funds or credit
               shall be prima facie evidence of intent to
               defraud or of knowledge of insufficient funds
               in, or credit with, such bank, banking
               institution, trust company or other



                                     2
further contends that, absent the statutory presumptions, the

evidence was insufficient to support her conviction.   We find

appellant's contentions to be without merit.

     "The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be set

aside unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it."   Martin v.


          depository unless such maker or drawer, or
          someone for him, shall have paid the holder
          thereof the amount due thereon, together with
          interest, and protest fees (if any), within
          five days after receiving written notice that
          such check, draft, or order has not been paid
          to the holder thereof. Notice mailed by
          certified or registered mail, evidenced by
          return receipt, to the last known address of
          the maker or drawer shall be deemed
          sufficient and equivalent to notice having
          been received by the maker or drawer.

                  *    *    *    *    *    *    *
                When a check is drawn on a bank in which
          the maker or drawer has no account, it shall
          be presumed that such check was issued with
          intent to defraud, and the five-day notice
          set forth above shall not be required in such
          case.

     Code § 18.2-184 provides:

          In any prosecution or action under the
          preceding sections, any notation attached to
          or stamped upon a check, draft or order which
          is refused by the drawee because of lack of
          funds or credit, bearing the terms "not
          sufficient funds," "uncollected funds,"
          "account closed," or "no account in this
          name," or words of similar import, shall be
          prima facie evidence that such notation is
          true and correct.




                                 3
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)

(citing Code § 8.01-680).    Code § 18.2-181 prohibits drawing a

check, knowing that the account drawn upon lacks sufficient funds

or credit to pay the check, with the intent to defraud.     Cf. Bray

v. Commonwealth, 9 Va. App. 417, 422, 388 S.E.2d 837, 839-40

(1990) (citing Huntt v. Commonwealth, 212 Va. 737, 739, 187

S.E.2d 183, 185 (1972)).    The intent to defraud "is an

indispensable element of the crime and the burden is upon the

Commonwealth to prove its existence at the time of drawing or

uttering the check."   Rosser v. Commonwealth, 192 Va. 813, 816,

66 S.E.2d 851, 853 (1951).

     The element of intent to defraud is satisfied by the

operation of the presumption under Code § 18.2-183 which provides

in relevant part that, "[w]hen a check is drawn on a bank in

which the maker or drawer has no account, it shall be presumed

that such check was issued with intent to defraud." 2   "For the

presumption of fraudulent intent to arise, the requirements of

the statute must be met by admissible evidence, not by

speculation or suspicion."    Sylvestre v. Commonwealth, 10 Va.

App. 253, 258, 391 S.E.2d 336, 339 (1990).    The evidence supports

the court's application of the presumption.   Appellant admitted

that she wrote a check upon a bank.   The Commonwealth's evidence

     2
      Because the check was "drawn on a bank in which the maker
or drawer has no account," the receiver of the check need not
give notice to trigger the presumption of intent to defraud.
Code § 18.2-183.




                                  4
showed that appellant's check was returned with the stamp

"Account Closed."    The evidence further supports the application

of the presumption under Code § 18.2-184 which provides, "[i]n

any prosecution or action under the preceding sections, any

notation attached to or stamped upon a check, draft, or order

which is refused by the drawee because of lack of funds or

credit, bearing the terms . . . 'account closed,' . . . shall be

prima facie evidence that such notation is true and correct."

Therefore, appellant had "no account" within the meaning of Code

§ 18.2-183, and the trial court properly applied the presumption

of intent to defraud found in Code § 18.2-183.
        The evidence further supports the trial court's

consideration of the presumption under Code § 18.2-183 that

appellant knew she had insufficient funds in her account when she

wrote the check.    Bierley sent appellant a certified letter on

September 22, 1996 notifying her that the check had not been

paid.    Appellant failed to pay Bierley within five days of

receiving the notice, and thus triggered the presumption under

Code § 18.2-183.

        Appellant's contention that the presumption of her intent to

defraud was rebutted by her testimony that the bank employee told

her after she had written the check that the bank was going to

close her account is without merit.    Assuming without deciding

that this testimony is sufficient to rebut the statutory

presumption, it was never offered at trial, but only at



                                   5
sentencing.   As such, the testimony has no bearing on the issue.

     Finally, in addition to its consideration of the

presumptions which arose under Code §§ 18.2-183 and 18.2-184, the

trial court considered and rejected appellant's testimony that

she did not know that the account was closed when she wrote the

check.   See Burket v. Commonwealth, 248 Va. 596, 614-15, 450

S.E.2d 124, 134 (1994) ("The trial court, as the finder of fact,

is entitled to weigh the evidence, to observe the demeanor of the

witnesses, and to assess their credibility.").   Because the trial

court properly applied the statutory presumptions, and further

properly determined the credibility issue in the case against the

appellant, we find the evidence was sufficient to support

appellant's conviction.
                                                        Affirmed.




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