                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Alston
Argued at Salem, Virginia


CHARLA DENORA WOODING
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1385-09-3                                    JUDGE WILLIAM G. PETTY
                                                                    MAY 18, 2010
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 Mark B. Arthur for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       On March 23, 2009, Charla Denora Wooding, the appellant, was convicted in a bench

trial of four counts of forgery, in violation of Code § 18.2-172, and four counts of uttering, in

violation of Code § 18.2-172. On appeal, Wooding argues that the court erred in admitting the

forgery affidavits without the affiant present. She also contends that the evidence was

insufficient to convict her of forgery and uttering. For the following reasons, we disagree and

affirm Wooding’s convictions.

                                          I. BACKGROUND

       “On appeal, we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4

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




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       In June 2008, SunTrust Bank contacted Dillard and Ruth Markham to inform them of

several apparently forged checks drawn on their account. After confirming that the checks were

forgeries, Lisa Redford, an employee of SunTrust, had Ruth Markham sign affidavits confirming

that the signatures on the suspicious checks were not hers and that she did not authorize anyone

else to sign for her. Ruth Markham died before trial so the Commonwealth offered the affidavits

in order to establish that the signatures were fraudulent.

       Investigator Couch of the Lynchburg Police Department first interviewed the Markhams

at their produce stand. He observed Charleston Williams, Jr., an employee of Markham Produce,

leaving the premises. Williams entered a green SUV where Wooding was riding as a passenger.

Investigator Couch then interviewed the teller at SunTrust, who identified Williams as the person

who attempted to pass the fraudulent check. Investigator Couch also reviewed video

surveillance that showed both Williams and Wooding as the individuals who had each cashed

several of the missing checks. Investigator Couch additionally interviewed a cashier of Quick

Stop, where some of the Markham checks had been cashed. After speaking with the cashier,

Investigator Couch prepared a photo lineup; the cashier identified Wooding as the person who

cashed the checks.

       Investigator Couch arrested Williams and later interviewed him regarding the Markham

checks. Williams admitted that, while mowing the Markhams’ yard, he noticed a book of checks

lying on the ground. Williams kept the book of checks and used the money to pay his bills. On

July 22, 2008, Investigator Couch interviewed Wooding while she was in police custody. When

Investigator Couch asked Wooding if she signed the checks, Wooding replied, “I suppose.”

Wooding admitted that she obtained the checks from Williams and had split the money with him.

       At trial, Lisa Redford explained SunTrust’s procedures to report fraudulent activity.

Redford testified that when a customer reports that checks have been forged, SunTrust

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employees examine the account with the customer to determine which checks are suspected to be

forged. The employee then contacts the internal fraud department and helps the customer

prepare an affidavit. The affidavit states that the signature on the fraudulent check is not the

client’s signature and that the client did not authorize anyone to sign the check.

       Redford testified that the affidavits are prepared in the normal course of business for the

bank in order to deal with claims of fraud. Redford completed this process with Ruth Markham

for each fraudulent check, and Redford notarized the affidavits. Neither Redford nor any other

bank employee informed Ruth Markham that the affidavits would be used in court proceedings.

       During trial, Wooding argued that the affidavits of forgery were inadmissible because

their admission violated the Confrontation Clause. The trial judge overruled Wooding’s

objection and admitted the affidavits holding that the documents were non-testimonial business

records and, therefore, their admission did not implicate the Confrontation Clause. The trial

court convicted Wooding of four counts of uttering and four counts of forgery, and this appeal

followed.

                                           II. ANALYSIS

       On appeal, Wooding argues that the trial court erred in admitting Mrs. Markham’s

affidavits because they violated her right to confrontation under the Sixth Amendment of the

United States Constitution and that the evidence was insufficient to establish the crime of forgery

and uttering. For the reasons that follow, we conclude that Mrs. Markham’s affidavit was not

testimonial and therefore admissible into evidence. We further conclude that the evidence was

sufficient to establish Wooding forged and uttered several checks in violation of Code

§ 18.2-172.




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                                A. Admissibility of the Affidavits

        The Confrontation Clause of the Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. The United States Supreme Court has interpreted this right to bar

“the admission of testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity to cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Thus, it is clear that “[t]he Confrontation

Clause only applies to testimonial hearsay. ‘That is because only those statements that are

testimonial in nature cause the declarant to be a witness within the meaning of the Confrontation

Clause.’” Crawford v. Commonwealth, 55 Va. App. 457, 477, 686 S.E.2d 557, 567 (2009)

(quoting Davis v. Washington, 547 U.S. 813, 821 (2006) (internal quotation marks omitted)).

“Indeed, ‘[i]t is the testimonial character of the statement that separates it from other hearsay

that, while subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.’” Id. (emphasis and modification in original) (quoting Davis, 547 U.S. at

821).

        The question of whether a statement is “testimonial,” though, is not often easily

answered. The Supreme Court’s decision in Crawford “set[s] forth ‘[v]arious formulations’ of

the core class of ‘testimonial’ statements . . . but found it unnecessary to endorse any of them,

because ‘some statements qualify under any definition.’” Davis, 547 U.S. at 822. While we

recognized in Crawford v. Commonwealth that the Supreme Court has recently stated that

“affidavits ‘fall within the core class of testimonial statements’ subject to the Confrontation

Clause . . . ,” we noted that the Supreme Court has not gone as far “as to hold that all affidavits

are per se testimonial.” 55 Va. App. at 478, 686 S.E.2d at 567 (quoting Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2532 (2009)).

                                                -4-
       In Crawford v. Commonwealth, we adopted the primary purpose test established in

Davis: “[s]tatements . . . are testimonial when the circumstances objectively indicate . . . that the

primary purpose of the interrogation is to establish or prove past events potentially relevant to

later criminal prosecution.” 55 Va. App. at 478, 686 S.E.2d 567 (emphasis added). Indeed, we

stated that “we see no principled reason to conclude that a hearsay statement obtained for a

purpose other than criminal prosecution should be treated differently with respect to the

Confrontation Clause solely because it takes the form of an affidavit.” Id. at 479, 686 S.E.2d at

568 (emphasis in original). Thus, we concluded that “the mere fact that the statements in [that]

case are contained within an affidavit is not dispositive to our analysis, and we must still look to

the ‘primary purpose of the interrogation’ to determine whether the statements are testimonial or

nontestimonial in character.” Id. (quoting Davis, 547 U.S. at 822.)

       While “[m]ost hearsay exceptions” generally cover “statements that by their nature [are]

not testimonial,” it is “not because they qualify under an exception to the hearsay rules” that they

are “admissible absent confrontation.” Melendez-Diaz, 129 S. Ct. at 2539. Rather, statements

such as business records or public records are “generally admissible absent confrontation . . .

because . . .—having been created for the administration of an entity’s affairs and not for the

purpose of establishing or proving some fact at trial—they are not testimonial.” Id. at 2539-40;

see also Riner v. Commonwealth, 268 Va. 296, 323, 601 S.E.2d 555, 570 (2004) (stating that

“business records are a type of hearsay ‘that by their nature [are] not testimonial’” (quoting

Crawford, 541 U.S. at 56)); Jasper v. Commonwealth, 49 Va. App. 749, 754, 644 S.E.2d 406,

409 (2007) (holding the Sixth Amendment right to confrontation does not apply to business

records). This general rule applies unless “the regularly conducted business activity is the

production of evidence for use at trial,” in which case the statements are testimonial.

Melendez-Diaz, 129 S. Ct. at 2538.

                                                -5-
        Thus, it is not the fact that the challenged statement is contained in an affidavit that is

dispositive, but rather the primary purpose for which the affidavit was prepared. An affidavit is

testimonial hearsay if it is prepared primarily for litigation, id. at 2540, and it is a non-testimonial

business record if it is prepared primarily “for the systematic conduct of the business as a

business.” Palmer v. Hoffman, 318 U.S. 109, 113 (1943). In other words, if the affidavit’s

“primary utility is in litigating,” id. at 114, not in banking, then the affidavit is testimonial.

Melendez-Diaz, 129 S. Ct. at 2540; Davis, 547 U.S. at 821; Crawford, 55 Va. App. at 479, 686

S.E.2d at 568. While a business record may be used to establish a past fact in a subsequent trial,

its admission into evidence will not offend the Confrontation Clause unless it is prepared

primarily for litigation. Accordingly, the ultimate question revolves around the primary purpose

for the affidavit’s production. Crawford, 55 Va. App. at 479, 686 S.E.2d at 568.

        Here, the bank contacted Mr. and Mrs. Markham regarding suspicious activity on their

checking account. Mrs. Markham went to the bank and met with Lisa Redford. Mrs. Markham

signed several affidavits prepared by the bank in its Fraud/Loss Prevention Department stating

that the signatures on the checks were not hers and she had not authorized anyone to sign her

name on the checks. The bank’s regional security manager testified:

                         The bank uses [the affidavits] to determine as to whether or
                not [it] will give restitution to the client.
                         If [the bank] feel[s] as though [the] client did everything
                they were supposed to do according to those rules and regulations,
                [the bank] reimburse[s] the client the amount of the loss, as [it] did
                in this case. And then the bank suffers the loss.

        Indeed, this statement is consistent with the requirements of Code § 8.4-406(c) which

requires the bank customer to “exercise reasonable promptness in examining the statement or

items to determine whether payment was not authorized because of an alteration of an item or

because a purported signature by or on behalf of a customer that was not authorized.” In other

words, it is the bank customer’s responsibility to dispute the validity of the forged checks in
                                                  -6-
order for the bank to reimburse the customer’s account. Code § 8.4-406(d) (Commercial code—

Bank Deposits and Collections). Thus, the bank absorbs the loss and the customer does not.

       The bank security manager further testified that the affidavits are “prepared solely for

fraud purposes, for fraud investigation by the bank.” Lisa Redford testified that the affidavits of

fraudulent transaction were prepared in the normal course of banking business and as “business

records that the bank keeps in order to deal with fraud, claims of fraud through the banking

system.” Once the customer signs the affidavit, the bank provisionally credits the customer’s

account with the amount fraudulently withdrawn from the account. The affidavit is sent to the

bank’s Fraud/Loss Prevention Department for a full investigation, and, if the investigation

reveals that the money was fraudulently withdrawn, then the bank permanently credits the

customer’s account.

       We have no reason to doubt the fact that the affidavits of fraudulent transactions were

business records prepared by the bank, signed by the customer, and retained by the bank for

further investigation. Stokes v. Commonwealth, 49 Va. App. 401, 409, 641 S.E.2d 780, 784

(2007) (holding that an “affidavit of forgery is a bank form that is routinely made and kept by the

bank when a depositor complains of an unauthorized withdrawal . . . , therefore, . . . [they] were

made in the regular course of bank business”). As such, the primary purpose for their production

was the systematic conduct of the bank’s business and not to prove a past fact in a subsequent

criminal proceeding. Thus, we conclude that the trial judge did not err in concluding that the

affidavits were not testimonial.

                                     B. Sufficiency of the Evidence

       Wooding also argues that the evidence was insufficient to support her forgery and

uttering convictions. On appeal, we will not overturn the trial court’s judgment unless it is

“plainly wrong or without evidence to support it.” Code § 8.01-680. “Code § 18.2-172

                                               -7-
provides, in pertinent part, that, ‘[i]f any person forge any writing . . . to the prejudice of

another’s right, or utter, or attempt to employ as true, such forged writing, knowing it to be

forged, he shall be guilty of a Class 5 felony.’” Oliver v. Commonwealth, 35 Va. App. 286, 295,

544 S.E.2d 870, 874 (2001) (quoting Fitzgerald v. Commonwealth, 227 Va. 171, 173-74, 313

S.E.2d 394, 395 (1984)). “To sustain a conviction for forgery in violation of Code § 18.2-172,

the Commonwealth must prove that the accused falsely made or materially altered a writing,

without the authority to do so, and did so to the prejudice of another’s right.” Bowman v.

Commonwealth, 28 Va. App. 204, 213, 503 S.E.2d 241, 245 (1998).

        Wooding argues that, without the affidavits discussed above, the evidence was

insufficient to prove that she did not have permission to sign or cash the checks. However,

Wooding conceded at oral argument that the evidence was sufficient to establish the crimes if the

affidavits were lawfully admitted. Having determined that the affidavits were lawfully admitted,

and considering all of the facts and circumstances of this case, we conclude that the evidence

was clearly sufficient.

                                           III. CONCLUSION

        For the foregoing reasons, we affirm Wooding’s convictions.

                                                                                              Affirmed.




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