                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, O’Brien and Malveaux
UNPUBLISHED


              Argued at Richmond, Virginia


              CIARA LASHELE WATKINS
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1531-15-2                                   JUDGE ROBERT J. HUMPHREYS
                                                                                   JULY 26, 2016
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                             Steven C. McCallum, Judge

                               (K. Scott Miles, on briefs), for appellant. Appellant submitting
                               on briefs.

                               David M. Uberman, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Ciara Lashele Watkins (“Watkins”) appeals her conviction from the Circuit Court of the

              County of Chesterfield (the “circuit court”) for issuing a bad check in violation of Code

              § 18.2-181. Watkins’s single assignment of error claims that the circuit court erred in convicting

              her of passing a worthless check because the check was given as payment for a past debt.

                     When the sufficiency of the evidence is challenged on appeal, “[t]his Court ‘must

              examine the evidence that supports the conviction and allow the conviction to stand unless it is

              plainly wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20,

              710 S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d

              137, 139-40 (2008)). The relevant inquiry is whether “any rational trier of fact could have found

              the essential elements of the crime beyond a reasonable doubt.” Kelly v. Commonwealth, 41

              Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S.

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
307, 319 (1979)). This Court’s deference to the fact finder “applies not only to findings of fact,

but also to any reasonable and justified inferences the fact-finder may have drawn from the facts

proved.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64 (2010). “A

factfinder’s resolution of conflicting facts, as well as competing inferences, receives ‘the highest

degree of appellate deference.’” Coleman v. Commonwealth, 52 Va. App. 19, 23 n.2, 660

S.E.2d 687, 689 n.2 (2008) (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608, 633

S.E.2d 229, 231 (2006)). To the extent this Court must interpret statutory language of Code

§ 18.2-181, this Court applies a de novo standard of review. See Conyers v. Martial Arts World

of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

       Code § 18.2-181 provides:

               Any person who, with intent to defraud, shall make or draw or
               utter or deliver any check, draft, or order for the payment of
               money, upon any bank, banking institution, trust company, or other
               depository, knowing, at the time of such making, drawing, uttering
               or delivering, that the maker or drawer has not sufficient funds in,
               or credit with, such bank, banking institution, trust company, or
               other depository, for the payment of such check, draft or order,
               although no express representation is made in reference thereto,
               shall be guilty of larceny; and, if this check, draft, or order has a
               represented value of $ 200 or more, such person shall be guilty of a
               Class 6 felony. In cases in which such value is less than $ 200, the
               person shall be guilty of a Class 1 misdemeanor.

               The word “credit” as used herein, shall be construed to mean any
               arrangement or understanding with the bank, trust company, or
               other depository for the payment of such check, draft or order.

               Any person making, drawing, uttering or delivering any such
               check, draft or order in payment as a present consideration for
               goods or services for the purposes set out in this section shall be
               guilty as provided herein.

(Second emphasis added).

       The last paragraph of Code § 18.2-181 was added by the General Assembly in 1978 in

response to the Supreme Court of Virginia’s holding in Lund v. Commonwealth, 217 Va. 688,


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232 S.E.2d 745 (1972), that “at common law labor or services could not be the subject of the

crime of larceny because neither time nor services could be taken and carried away.” Sylvestre

v. Commonwealth, 10 Va. App. 253, 256, 391 S.E.2d 336, 338 (1990) (quoting Lund, 217 Va. at

692, 232 S.E.2d at 748). The “purpose of the amendment was simply to provide that bad checks

given as present consideration for intangible goods or services may, assuming all other

provisions of the statute are met, constitute the crime of larceny.” Id. at 257, 391 S.E.2d at 339.

However, “the amendment did not make it the crime of larceny to give a bad check as payment

for past debts or as gifts, nor did the amendment alter or limit the scope of the first paragraph as

it existed prior to 1978.” Id. at 257-58, 391 S.E.2d at 339.

       Watkins claims that there was an executed contract between the parties in February 2014

and that the $2,500 check dated March 21, 2014 was issued pursuant to that earlier agreement,

not the executed contract of March 21, 2014. “To prove a contract’s existence, all of the

essential elements must be proven. ‘[T]here must be a complete agreement which requires

acceptance of an offer, as well as valuable consideration.’” Dean v. Morris, 287 Va. 531, 536,

756 S.E.2d 430, 432-33 (2014) (quoting Montagna v. Holiday Inns, Inc., 221 Va. 336, 346, 269

S.E.2d 838, 844 (1980)). Pursuant to the statute of frauds,

               a contract for the sale of goods for the price of $500 or more is not
               enforceable . . . unless there is some writing sufficient to indicate
               that a contract for sale has been made between the parties and
               signed by the party against whom enforcement is sought or by his
               authorized agent or broker.

Code § 8.2-201(1); see also Armco, Inc. v. New Horizon Dev. Co., 229 Va. 561, 565, 331 S.E.2d

456, 459 (1985).

       The record in this case contains a proposed contract for the sale of a 2014 Hyundai

Sonata from February 26, 2014; however, it was not signed by Watkins or a representative of the

dealership. Therefore, contrary to Watkins’s claim, no binding contract was formed on February

                                                -3-
26, 2014 because the February document did not comply with the statute of frauds. Further, the

finance director at Gateway, Talal El Oukaili (“El Oukaili”) testified that because the February

document in the record was not signed, he was not certain that it represented a final agreement.

Watkins also admitted that the unsigned February document admitted into evidence was different

than the one she claimed to have signed on February 26, 2014. As the circuit court noted,

Watkins “was not the legal owner when the car was allowed to leave with her in February.” At

best, Watkins was a bailee of the car. See Morris v. Hamilton, 225 Va. 372, 374, 302 S.E.2d 51,

52 (1983) (“[I]n order to establish a bailment, there must be a delivery by the bailor and an

acceptance by the bailee. However, no formal contract or actual meeting of the minds is

necessary.”).

       Later, Gateway chose to renegotiate the arrangement with Watkins on March 21, 2014,

lowering the amount to be financed from $23,112.52 to $20,848. It was not until March 21,

2014 that both Watkins and El Oukaili, as a representative of Gateway, signed a contract which

contained a provision expressly requiring Watkins to pay a $2,500 deposit. In accordance with

that provision, Watkins placed the check for $2,500 in the overnight drop box at the dealership

later that day. Thus, it was on March 21, 2014 when a binding contract for the sale of the Sonata

was actually formed. The circuit court made a factual finding that the $2,500 check Watkins

wrote to Gateway contemporaneously with the execution of the contract for the sale of the

Sonata on March 21, 2014 was simply her performing her obligation under the newly formed

contract, not paying an existing debt. Because this Court cannot say that this factual finding by

the circuit court was plainly wrong or without evidence to support it, we affirm the decision of

the circuit court. See McNeal, 282 Va. at 20, 710 S.E.2d at 735.

       Watkins cites this Court’s decision in Sylvestre for the proposition that her conviction

should be reversed because the evidence “failed to exclude the hypothesis that the check was

                                               -4-
given for a past debt.” However, Watkins misrepresents the holding of Sylvestre. In Sylvestre,

this Court reversed a conviction under Code § 18.2-181 because the “record contain[ed] no direct

evidence of any such [fraudulent] intent on [the defendant’s] part.” 10 Va. App. at 258, 391

S.E.2d at 339. This Court further held that the rebuttable presumption contained in Code

§ 18.2-183 which provides that the issuance of a check without sufficient funds constitutes prima

facie evidence of fraudulent intent when the issuer is provided “‘written notice that such check,

draft, or order has not been paid to the holder thereof’” did not apply because the “record

contain[ed] no evidence that [the defendant] ever received such written notice.” Id. (quoting

Code § 18.2-183). Thus, this Court concluded that the fact that the defendant had “passed a bad

check . . . , standing alone, [was] not adequate to bring the case within the ambit of Code

§ 18.2-181.” Id. at 259, 391 S.E.2d at 340. Watkins heavily relies on the Court’s statement,

“[a]s the evidence did not exclude the hypothesis that the check was given for a past debt, the

motion to strike should have been granted.” Id. However, the Court in Sylvestre repeatedly

emphasized that the Commonwealth failed to prove what goods or services the defendant had

issued the check to pay for. Id. at 254-55, 257-59, 391 S.E.2d at 337, 338-40.

       The facts of this case are easily distinguishable. First, while not the subject of this

appeal, there is ample evidence in the record demonstrating Watkins’s intent to defraud

Gateway. Specifically, the statutory presumption of fraudulent intent applies given that Watkins

received notice that her check was returned for insufficient funds and still failed to make

payment to Gateway. See Huntt v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 186

(1972) (holding that the statute creates “a rebuttable presumption of the necessary intent and

knowledge if a dishonored check is not paid within five days after giving of the notice specified

in the statute”). Further, Watkins admitted that she wrote the $2,500 check for the deposit

knowing that there were insufficient funds in her account to cover the check, that representatives

                                                -5-
from Gateway had repeatedly tried to contact her after the check was returned for insufficient

funds, and that she lied when she had texted an employee at the dealership telling her that she

had obtained a certified check to cover the cost of the deposit. Watkins also lied to Officer

Lucca when she told him she had not been contacted by Gateway regarding the returned check.

Second, unlike in Sylvestre, there is no question what goods Watkins issued the check to pay for.

As the circuit court noted, it is clear from the record that Watkins issued the $2,500 check on

March 21, 2014 to pay for the Sonata pursuant to the signed contract with Gateway dated that

same day. Thus, Sylvestre does not require reversal in this case.

       Applying the appropriate standard of review, we hold that the circuit court’s factual

finding that the $2,500 check Watkins wrote to Gateway contemporaneously with the execution

of the March 21, 2014 contract was issued to satisfy her obligation under the newly formed

contract, not to pay an existing debt, was not plainly wrong or without evidence to support it.

Accordingly, we affirm the circuit court’s decision.

                                                                                    Affirmed.




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